Federal Circuit Reaffirms Prior Decision: Isolated Human DNA Patentable: Federal Circuit Panel Decides That Its Previous Ruling Is Unaffected by Subsequent Supreme Court Opinion

Sullivan & Cromwell LLP - August 20, 2012

On August 16, 2012, a divided three-judge panel of the United States Court of Appeals for the Federal Circuit held for the second time that isolated DNA molecules are patentable subject matter under § 101 of the Patent Act. The opinion reaffirms the Federal Circuit’s previous holding in the same matter, after the Supreme Court had vacated the initial opinion and remanded for further consideration in light of the Supreme Court’s decision in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (March 20, 2012) (“Mayo”). The Federal Circuit case concerns the patent eligibility of isolated human genes called BRCA1 and BRCA2, mutations of which are associated with a predisposition to breast and ovarian cancer.