Patents in the News II: The Patentability of Genes
Yesterday, Gilbert's LLP filed a statement of claim in the Federal Court on behalf of the Children's Hospital of Eastern Ontario (CHEO), amid a host of media attention. The plaintiff's claims refer to 5 Canadian gene patents held by the University of Utah Research Foundation, Genzyme Genetics, and Yale University. CHEO seeks to conduct in-house genetic screening for Long QT syndrome, but is currently blocked by Canadian patents on the genes. The patents also claim methods used to test for Long QT syndrome. The plaintiff claims the following: (1) A declaration under section 60(2) of the Patent Act that the proposed testing by CHEO would not infringe the claims of the patents. (2) A declaration under section 60(1) of the Patent Act that all claims in the patents are invalid. (3) A declaration voiding the claims under section 62 of the Patent Act. (4) In the alternative, a declaration under section 19.1(2) of the Patent Act that the proposed testing by CHEO constitutes a public, non-commercial use of the patents. The plaintiff also claims costs and any other relief as the court may deem just. The validity of the patent claims are challenged on the bases of unpatentable subject matter, anticipation, obviousness, overbreadth of claims, and insufficient disclosure. This case follows in the wake of the Myriad Genetics case (569 US 12-938), where the US Supreme Court held that "A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring." The Court file number is T-2249-14 The CHEO statement of claim is available at: http://static.ow.ly/docs/11%2003%2014%20Statement%20of%20Claim%20(Issued)_2Gax.pdf The patents at issue may be found at: http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2240737/summary.html?type=number_search http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2336236/summary.html?type=number_search http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2337491/summary.html?type=number_search http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2369812/summary.html?type=number_search http://brevets-patents.ic.gc.ca/opic-cipo/cpd/eng/patent/2416545/summary.html?type=number_search
