Standing to Sue

The following excerpt is the introduction to this piece. To read the full essay, download the PDF above.

A short time ago, a three-judge panel of the United States Court of Appeals for the Federal Circuit issued its decision in Ass’n for Molecular Pathology v. USPTO (Myriad Genetics), one of the most important patent cases in recent history. The Myriad case addresses the controversial question whether isolated human genes related to breast and ovarian cancer can be patented. The case has garnered significant attention from various industries, the Department of Justice, the legal academy, the media, and the public. Features on the lawsuit have appeared in the New York Times, Washington Post, Wall Street Journal, and Los Angeles Times, and approximately forty amicus briefs were filed with the court. So far, commentators and amici have focused primarily on the substantive legal issues: Should genes be patentable subject matter? How do gene patents impact medical research and health care? Do gene patents promote innovation as required by the Constitution? Yet, the Myriad case also raises important questions about the justiciability of patent declaratory judgment disputes that have received surprisingly little attention.