Can Any DNA Claims Still Be Patented?

In a decision issued December 17, 2014, in In Re BRCA1- And BRCA2-Based Hereditary Cancer Test Patent Litigation (Myriad II), the Federal Circuit invalidated Myriad's primer claims and detection method claims under 35 USC § 101. I first reported the decision here, and now revisit that decision and the Supreme Court decision in Association for Molecular Pathology v. Myriad Genetics, Inc. (Myriad I), to consider the patent eligibility of DNA claims, and identify the types of DNA claims that may survive the Myriad decisions. I'll be presenting some of these views at the USPTO Eligibility Forum later today.

The Primer Claims At Issue In Myriad I and Myriad II

When considering the impact of the Myriad decisions, it is important to keep in mind the claims that were at issue. Indeed, the primer claims invalidated by the Supreme Court in Myriad I and the Federal Circuit in Myriad II were very broad.