The United States Supreme Court must be despairing of how many patent appeals are coming its way. After all, patent law is few people's cup of tea. As one old, though obscure, joke puts it:
Question: What's the difference between a patent attorney and a tax attorney?Answer: Patent attorneys are like tax attorneys, but without the scintillating personalities!
Watch out, Supremes, because the Court of Appeals for the Federal Circuit may have just teed you up to grant yet another writ of certiorari in a patent case.
Like Prometheus v. Mayo, a dispute focused on the patentability of methods of medical diagnosis and treatment, Association for Molecular Patholody v. Myriad raises fundamental questions of patentable subject matter and the interpretation of 35 U.S.C. 101. On July 29, 2011, the Court of Appeals for the Federal Circuit largely overturned a decision on summary judgment by Judge Sweet of the Southern District of New York that rendered unpatentable claims to isolated DNA molecules per se and methods of diagnosis relying on comparisons of mutated DNA molecules with corresponding patient DNA samples.
It would be natural for the Supreme Court to combine the appeals of Prometheus v. Mayo and Association for Molecular Pathology v. Myriad because they both probe similar and related issues of patentable subject matter. Such a combined appeal would have the potential to settle fundamental issues of patent eligibility surrounding many biotechnology inventions for a generation.
The eyes of biologists, the biotechnology industry, and patient advocacy groups are now firmly fixed upon the Supremes.