The patentability of human genes is without a doubt one of the hottest issues before the U.S. Court of Appeals for the Federal Circuit, which in April is scheduled to hear Myriad Genetics’s appeal of a Manhattan federal district court ruling that its patents on two gene mutations are invalid. Last November the U.S. Department of Justice stunned the patent bar by filing an appellate brief that supported Judge Robert Sweet’s finding that genes, in and of themselves, are not patentable. The surprises continued in February, when acting U.S. solicitor general Neal Katyal notified the court clerk of the Federal Circuit via letter that when a three-judge panel hears the Myriad appeal, Katyal himself will present the government’s argument.
This appears to be the first time that a solicitor general has argued at the Federal Circuit—and it’s notable that Katyal will appear instead of the Patent and Trademark Office’s solicitor general. (The PTO, a defendant in the suit at the trial court level, did not appeal Judge Sweet’s ruling.) There has been a lot of talk among patent lawyers that the PTO, which has a long-standing policy of granting gene patents, and the Justice Department don’t agree on the issue.
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