On Monday, June 13, 2016, the Patent Trial and Appeal Board issued its first ever post-grant review decision under the America Invents Act. The Board invalidated two patents challenged by Husch Blackwell client American Simmental Association, a national cattle breed association representing the interests of Simmental cattle breeders in the United States. The ASA successfully
Genetic testing continues to play an increasingly important role in the selection of animals for beef cattle production. Recently, the United States Supreme Court determined that the discovery of the location of a gene on a chromosome is not eligible for patent protection. This ruling will significantly alter the playing field for cattle genomics companies that seek to patent genes in relation to tests for traits like marbling, tenderness, or milk production.
In Association for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court held that the location of genes and the order of nucleotides in a gene are “products of nature” that do not meet the Patent Act’s invention requirement. At issue in Myriad were patents directed to two DNA markers that identified the BRCA1 and BRCA2 genes as well as the normal sequence of nucleotides within those genes. Women with certain mutations in these genes have an extraordinarily high risk of developing breast or ovarian cancer. Myriad’s patent claimed the exclusive right to isolate an individual’s BRCA1 and BRCA2 genes and the sequence of the nucleotides within those genes. As a result, no other laboratories could perform tests for mutations of these genes because isolating the genes and their DNA sequence in any individual would infringe Myriad’s patent.