Wednesday, November 4, 2009

Court Has Subject Matter Jurisdiction to Hear Constitutional Challenge to Gene Patent

The court denied defendant PTO's motion to dismiss for lack of subject matter jurisdiction plaintiffs' complaint alleging that patents claiming genes used in breast cancer testing were invalid as unconstitutional. "While the USPTO notes the existence of a comprehensive scheme to redress violations of the Patent Act, it cites to no comparable statutory scheme providing a remedy for persons who complain about the constitutionality of patents issued by the USPTO and/or the policies and practices of the USPTO. . . . The novel circumstances presented by this action against the USPTO, the absence of any remedy provided in the Patent Act, and the important constitutional rights the Plaintiffs seek to vindicate establish subject matter jurisdiction. . . ."

Association For Molecular Pathology et al. v. USPTO et al.,
1-09-cv-04515 (NYSD November 2, 2009, Opinion) (Sweet, J.)

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