See James J. Mullen, III, and Mary Prendergast of Morrison Foerster in Judges Don't Budge in Myriad: Federal Circuit Again Finds Isolated Gene Sequences are Patent-Eligible Subject Matter, a case in which the Federal Circuit essentially disregards a recent landmark Supreme Court decision:
"The Federal Circuit today issued its opinion in Assoc. for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al. ("Myriad"), in which it re-affirmed its prior ruling, despite the Supreme Court's instruction to revisit that ruling in light of its decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., ___U.S.___ (March 20, 2012) ("Prometheus")."As reported inter alia by Jonathan Stempel of Reuters:
"In a brief arguing against patenting genes, Dr. James Watson, co-discoverer of the double helix structure of DNA, said he feared the court failed to appreciate the fundamentally unique nature of the human gene, which stores information necessary to create and propagate life.Dr. Watson may as well have been talking to a wall -- and that wall is made up of many of the judges of the Federal Circuit whose backward patent decisions in recent years have led in part to a patent system which many view as "broken" today.
"It is a chemical entity, but DNA's importance flows from its ability to encode and transmit the instructions for creating humans. Life's instructions ought not be controlled by legal monopolies created at the whim of Congress or the courts." [emphasis added by LawPundit]
This judicial recalcitrance is well known to the U.S. Supreme Court Justices, as we wrote previously at LawPundit, pointing to a strong rebuke of the Federal Circuit by the Chief Justice of the United States, John G. Roberts, for not following Supreme Court precedents.
It would seem to this observer, that when this last Federal Circuit decision on Myriad is appealed and surely reversed, that the U.S. Supreme Court should address some stern words to the Federal Circuit to the degree that they are contributing to a lack of respect for the courts and also for law and order in general by not abiding by the laws and authorities to which they, as all the other normal citizens of the country, are bound. It sets a bad example for any court to think it is "above the law".
Indeed, we think that Congress should consider disbanding or substantially reforming the Federal Circuit -- which was created under the novel and by hindsight clearly unsuccessful idea of staffing such a court with people of technological experience, rather than choosing people best suited as judges per se. The nation-wide power of the Federal Circuit in patent appeals and holdings (second only to the U.S. Supreme Court's precedents) has also proven to be an increasingly vexing problem.
It would be better in the future to have patent cases decided in normal circuit courts, NOT having nation-wide jurisdiction, where there is likely to be more understanding for deciding cases as a matter of law and pursuant to Supreme Court precedents, and not as a matter of the unbridled personal technology preference of Federal Circuit judges.
The fact that Federal Circuit decisions carry nation-wide force has certainly led to the judges on this court to overstep their authority in their decisions, not having enough respect for the authority of the U.S. Supreme Court, and that should clearly be changed. There can only be ONE court having nation-wide influence. Anything else leads -- as it has -- to trouble in the Judiciary.
Technology is one thing, but the rule of law is quite another.
