The Curious Incident of the Supreme Court in Myriad Genetics

40 Pages Posted: 12 Mar 2014 Last revised: 6 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: March 10, 2014

Abstract

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court’s silence regarding Mayo leaves uncertain the relationship between the “products of nature” doctrine that serves as the basis for the Myriad decision, and the “laws of nature” doctrine that has been the basis of nearly all of its other subject matter cases. In this paper I assemble the clues in the laws of nature cases to suggest what the Court might have said or might still say regarding products of nature.

Keywords: patents, intellectual property, biotechnology, gene patents, AMP v. Myriad Genetics, DNA patenting

JEL Classification: O31, O32, O33, O34, L65, K20

Suggested Citation

Burk, Dan L., The Curious Incident of the Supreme Court in Myriad Genetics (March 10, 2014). Notre Dame Law Review, Vol. 90, No.2, 2014, pp.505-542, UC Irvine School of Law Research Paper No. 2014-29, Available at SSRN: https://ssrn.com/abstract=2407094

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

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949-824-9325 (Phone)

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