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Penn Joins Two Patent Infringement Lawsuits Over Breast Cancer Gene Testing

Publication Date: 
October 31, 2013
The Daily Pennsylvanian
Harry Cooperman

Center for Law and the Biosciences Fellow Jacob Sherkow is quoted in The Daily Pennsylvanian regarding the progress of two patent infringement lawsuits being brought against Quest Diagnostics and GeneDx Inc..

While Penn was recently named as a plaintiff in two court actions filed by a genetics company over breast-cancer-related patents, two similar cases in which Penn is involved might influence the result of these new filings.

In its most recent court battles over genetic testing, Myriad Genetics — along with Penn, the University of Utah Research Foundation, Endorecherche, Inc. and the Hospital for Sick Children Research and Development LP — has filed two separate lawsuits against Quest Diagnostics and GeneDx Inc. in mid-October.


It is likely that Myriad is “controlling the direction of this lawsuit,” Jacob Sherkow, a fellow at Stanford Law School’s Center for Law and Biosciences, said.

“Anyone who has any ownership [of a] patent has to be [part of] the lawsuit for the federal court to have power to hear it,” Sherkow said. That’s why, he noted, Penn and several others might be plaintiffs in the lawsuit — not necessarily because they want to be a part of it.


Sherkow said that the primer-related issues in the Quest and GeneDx cases might be settled before either party has the chance to argue them.

When the U.S. Supreme Court decided this summer that naturally occurring genes could not be patented, it “left open the issue of whether primers are still patentable,” Sherkow said.


“Myriad, GeneDx and Quest may want to wait to see how this issue in the Ambry and Gene by Gene cases play out before they make any big decisions,” Sherkow said.