By Sonia McNeil
Myriad Genetics Appeals Ruling on Patentability of Isolated Genes
Myriad Genetics has appealed the Southern District of New York’s ruling in Association for Molecular Pathology v. USPTO. The district court invalidated seven Myriad Genetics patents relating to the human Breast Cancer Susceptibility Genes 1 and 2 (collectively, “BRCA1/2”), finding that the claimed isolated DNA is not markedly different from native DNA as it exists in nature and therefore constituted unpatentable subject matter under 35 U.S.C. § 101. On appeal, Myriad Genetics argues (1) that the district court lacked declaratory judgment jurisdiction, and (2) that its composition and method claims cover patent-eligible subject matter. PatentlyO predicts that the Court of Appeals for the Federal Circuit will reverse the lower court; other commentators expect appeal to the U.S. Supreme Court to follow.
Third Circuit to Consider Constitutionality of Routine DNA Collection from Arrestees
The Third Circuit has scheduled en banc reargument of the Justice Department’s appeal in United States v. Mitchell. Mitchell considered the constitutionality of requiring a defendant to submit a DNA sample for analysis and inclusion in a law enforcement database. Finding “no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, but have been arrested and are awaiting proper trial,” the district court held the regulation invalid under the Fourth Amendment. Describing the April oral argument of the appeal, Law.com notes that the Justice Department highlighted statutory safeguards preventing use of the DNA beyond identification, while Mitchell’s attorney argued that the law’s real goal is to expand the DNA database in order to investigate other crimes and to link suspects to evidence in unsolved cases.
Rotterdam Promotes DNA Mist as Aid to Crime Deterrence and Detection
The New York Times reports that the city of Rotterdam, the Netherlands, is promoting the use of a new DNA mist in an effort to deter robberies. When triggered, the system alerts law enforcement and sprays a fine liquid mist of synthetic DNA carrying markers unique to the location and visible under ultraviolet light. Although Rotterdam has not yet made an arrest based on DNA mist evidence, law enforcement and shop owners credit the presence of signs warning, “You Steal, You’re Marked” with anecdotally declining crime rates.