Myriad, Omaha Steaks, Abbott Healthcare: Intellectual Property

Myriad Genetics Inc. (MYGN) lost its bid to block competing DNA tests to determine risk for breast and ovarian cancer as a U.S. appeals court said three patents on the tests never should have been issued.

The patents cover products of nature that arent eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted yesterday on its docket. The court upheld a trial judges decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market.

The tests check genes known as BRCA to determine whether theres a hereditary risk of developing the diseases. Myriad was the only company offering the tests until the U.S. Supreme Court last year limited the ability to obtain patents on human genetic sequences. Some patent claims in this case were similar to those invalidated by the high court, a three-judge panel ruled.

They are structurally identical to the ends of DNA strands found in nature, U.S. Circuit Judge Timothy Dyk wrote for the panel. A DNA structure with a function similar to that found in nature can only be patent-eligible as a composition of matter if it has a unique structure, different from anything found in nature.

Other claims, involving diagnostic methods, do nothing more than spell out what practitioners already knew -- how to compare gene sequences using routine, ordinary techniques, Dyk said in the opinion.

Ambry, based in Aliso Viejo, California, and other testing companies have accused Myriad of antitrust violations, claiming it filed the patent suits to prevent competition.

The appeal is University of Utah Research v. Ambry Genetics Corp., 14-1361, U.S. Court of Appeals for the Federal Circuit (Washington).

The Ambry case is University of Utah Research Foundation v. Ambry Genetics, 13-cv-00640, and the combined case is In Re: BRCA1 and BRCA2-based Hereditary Cancer Test Patent Litigation, 14-md-02510, U.S. District Court, District of Utah (Salt Lake City).

Kudelski SAs (KUD) OpenTV unit lost a patent case it brought against Netflix Inc. (NFLX), the streaming video service for watching television shows and movies, PC World reported.

The District Court of the Hague tossed out the suit, finding that the patent at issue was invalid, according to PC World.

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Myriad, Omaha Steaks, Abbott Healthcare: Intellectual Property