The Supreme Court ruled on the Myriad Genetics case last summer. Since the case was decided, the company has been engaged in litigation with companies that started offering testing for the subject genes after the ruling. Robert Cook-Deegan has summarized the post-decision for those of us, like me, who thought the Supreme Court ruling ended things. He’s also outlined some possible reasons for why Myriad Genetics launched a patent offensive in the wake of a decision that would seem – at least to a layman like me – to have foreclosed the company’s control over two genes.
Six companies have been sued by Myriad, with one settlement so far. The cases have been consolidated and are currently working through a Federal District court in Utah. Hearings were held in September and October. On March 10, the judge in the case denied a motion for a preliminary injunction filed by Myriad. This means that the company wanted the judge to stop competition on the medical tests of the BRCA1 and BRCA2 genes while the lawsuit went through the judicial process. Usually these injunctions are granted because the side requesting relief could be reasonably seen to prevail on the merits of its case. That doesn’t automatically mean that Myriad would lose, but it suggests that the company’s case is far from obvious. It’s worth noting that these cases, as Cook-Deegan describes them, could be more complicated than the underlying case that opened up this competition over genetic testing. Among the possible wrinkles include government involvement, because underlying research relied on research funds from the National Institutes of Health.
Of course, the path of litigation is tough to predict. As one company has already settled, it’s possible none of this comes to trial. Or not. While we’re on the subject of the BRCA genes, it’s interesting to note this development reported earlier today. BRCA1, besides controlling the development of proteins that can help prevent DNA damage, could control brain development. As the research is only at the mice level, it will be a while before Myriad Genetics or other companies may be able to take advantage of their breast cancer work on BRCA in a new context.