Moocow It makes no sense to make it ineligible just because it was used to detect the naturally-occurring antibody.

Really? It actually makes total sense once you take your lips off your patent crack pipe.

The iodine-labeled MusK is ineligible for patenting because there is not “sufficiently” more that is “inventive” recited in the claim beyond the ineligible subject matter (i.e., the naturally occurring molecule). Iodine labeling for the purpose of detection or detecting is old in the art. What possible sense would it make to ban people from patenting naturally occurring molecules but to grant those same people the right to sue anybody who uses prior art techniques to detect those same molecules? Answer that question and try to do so without engaging in sophistry and silly scare tactics about how “nobody will bother to discover anything anymore unless you hand out reams of these junk claims.” Go ahead.

If it had been claimed in its own right it would have passed 101 analysis.

Hey, if you say so. It’s unclear why it wasn’t claimed, then, if that’s the case. Why not also claim the naturally occuring molecule “comprising a detectable label”? That’s also “new” and a lot broader. For that matter, why not claim “in a plasma-free solution” or “freeze dried”? All “new”. Also incredibly obvious, of course, and also a recipe for disaster unless you are already wealthy and looking to invest in an R&D destroying scheme, or if you are a patent attorney desperate for work and you don’t care about anything else.

Myriad also had claims to a drug screening method using a cell line transfected with a defective BRCA gene.

Those claims were total j-u-n-k.

Transfecting a cell line was conventional, but the BRCA-transfected cell was nonetheless new and patent-eligible and therefore the screening method using that cell line was eligible too.

I don’t recall those claims being specifically presented to the Supreme Court but I guarantee you that they would never be deemed enforceable if they were challenged by a party capable and willing to make the proper defense (and 101 would certainly be among those defenses). Identify a mutation and draft a generic prior art method of “use a cell line with the mutation for testing stuff”? You think that’s going to fly in 2020? Highly highly unlikely. And again: there’s great reasons for keeping that junk out of the system.

That’s the funny thing about the patent maximalists. They think they are all about “innovation” and yet they are somehow stuck back in 1985 when it comes to technology. Heck, when it comes to computers you guys are stuck back in 1945, or earlier! Grow up already.

The cDNA in Myriad was patent-eligible because it was “unquestionably something new” even though its structure and sequence were dictated by nature and making a cDNA was pretty conventional.

Just for the sake of historical accuracy, many of the compositions covered by Myriad’s broadest asserted claims were, in fact, not remotely new (except possibly for the “isolation” aspect). Myriad is (?) was an awful, greedy company and their asserted claims were disgustingly broad. In real time, I (and others) regularly expressed my unhappiness with the defense’s approach to Myriad’s claims and Thomas’ opinion certainly includes inconsistencies and inaccuracies that are only rescued by the opinion’s expressly limited holding. The worst problem is the fuzzing over of the fact that “cDNA” is just … DNA. There is nothing necessarily implicated about the structure of a claimed DNA molecule merely by inserting the “c” before “DNA”. All it means is that the DNA molecule is complementary to a naturally occurring RNA molecule. That’s it.

That’s what was pretty amusing about the Myriad decision. It was literally all about Myriad and Myriad’s greed. Hardly any company was even interested in pursuing and claiming isolated DNA molecules comprising short specific sequences of DNA because the universe of prior art is huge and enforcement is virtually impossible. All that is to say that what was at stake in Myriad went well beyond Myriad’s specific claims and their “eligibility”. On a certain level it was about deciding what kind of world we wanted to live in. Do I have the right to use prior art tech to determine facts about my own body? Or do I need to license ten zillion patents from super s-c-u-m-m-y corporations first?