Firm may ask Supreme Court to overturn patent ruling

Life sciences company Sequenom will soon decide whether to ask the U.S. Supreme Court to review a recent ruling on patents that some say could threaten many medical and biotechnology inventions.

San Diego-based Sequenom said last week that it was considering appealing a lower court decision invalidating its patent for an invention that tests a mother's blood for genetic traits in her fetus.

In June, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld a district court's decision to undo the patent because of a prior Supreme Court ruling that natural phenomena can't be patented. Last week, the appellate court denied Sequenom's request that it rehear the case before a full panel of judges.

Sequenom had argued that the decision “threatens to swallow many more meritorious inventions along with this one.” The company noted that the “core of nearly every major innovation is the discovery of a fact about the natural world.”

Arti Rai, a Duke University intellectual property law expert, said that if the lower court's decision stands, it could make it more difficult for smaller companies to bring new diagnostics to market. “It's a very significant blow to patenting in this space,” she said.

It's unknown if the Supreme Court will agree to hear the case, but several of the lower court judges pointed a way forward for the justices, Rai said.

Appellate Judge Timothy Dyk wrote that “further illumination” from the high court about the issue of patenting natural phenomena would be helpful. “Any further guidance,” he wrote, “must come from the Supreme Court, not this court."