Two More Items Worth Monitoring in Myriad

Thanks to Patent Docs, we learn of two developments in the Myriad case that are worth analysts’ attention.  The first is the fact that the U.S. government is chasing its tail in this case, with the Commerce Department and Justice Department arguing for opposing sides.  The latest in this saga is a letter sent on Office of the Solicitor General stationary to the Clerk of the U.S. Court of Appeals for the Federal Circuit (CAFC) requesting to present oral argument. (Patent Docs offers that letter here.)

The second issue of importance to valuators is one of standing, as articulated by Kevin E. Noonan  in one of his answers to comments. 

Simply stated, standing refers to the ability of a plaintiff to prove to the court that they have suffered or would suffer harm from an action of the defendant, or that they have sufficient connection to that action. It’s logical to assume the more lenient the application of standing criteria, the more litigation will result, ipso facto, there will be more risk inherent in owning intellectual property, and corresponding less value. 

For clarity, Mr. Noonan, who co-authored the amicus brief in the Myriadcase filed 10-28-2010 by the Intellectual Property Owners Association (IPO), not so flippantly gives the example of someone using a Freedom of Speech argument to sue Microsoft for their lock on Word.  The IPO amicus brief is much more legal/technical, but instructive, as half of it focuses directly on the standing issues in this case.

The crux of the argument re standing is on page 2 of the brief:

“…there is no substantial controversy in the present case of sufficient immediacy and reality to warrant declaratory judgment jurisdiction.  Indeed, if the facts of this case provide adequate foundation for standing, then nearly anyone might seek to file a declaratory judgment action to challenge the validity of any patent – a result that would place a heavy burden on patent owners and on the already overburdened judicial system.”

Not only is the outcome of Myriadcritical to which way progress will move in the biotech arena, if Mr. Noonan is correct, the question of standing is key to the way valuators will look at all IP in the future.