Discovery of cffDNA Not Patentable

The court granted plaintiff's motion for summary judgment that defendant's pre-natal testing patent contained ineligible subject matter and rejected defendant's argument that the patent claimed the use of DNA and not the DNA itself. "[Defendant] argues that the claims are patentable because although cffDNA is not patentable, the use of cffDNA is patent eligible. The Court disagrees. The Supreme Court has never stated that any use of a natural phenomenon is patentable. . . . It is only an innovative or inventive use of a natural phenomenon that is afforded patent protection. . . . [B]ased on the undisputed facts before the Court, the only inventive part of the patent is that the conventional techniques of DNA detection known at the time of the invention are applied to paternally inherited cffDNA as opposed to other types of DNA. Thus, the only inventive concept contained in the patent is the discovery of cffDNA, which is not patentable."

Ariosa Diagnostics, Inc. v. Sequenom, Inc., 3-11-cv-06391 (CAND October 30, 2013, Order) (Illston, J.)