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RFC Express - New IP Lawsuits

Genes Under the Microscope Novel or Not?






By Antoinette Konski and Courtenay Brinckenhoff and Alex Nie of Foley & Lardner LLP

Antoinette F. Konski is a partner with Foley & Lardner LLP and currently serves as the Silicon Valley Intellectual Property Office Chair. Courtenay Brinckerhoff is a partner in Foley's Washington, D.C. office and serves as acting chair of the firm’s Chemical & Pharmaceutical Practice. Alex Nie is an associate in Foley's Silicon Valley office.

The Federal Circuit’s March 26th, 2009 decision In re Gleave1 opens up a library of potentially invalidating prior art from the world of high through-put gene sequencing and bioinformatics.  The Court held that a prior art reference that lists every possible fifteen-base segment of a known gene invalidated claims to antisense oligonucleotides based on the same gene, even though the reference did not enable any utility for the oligonucleotides or highlight which, if any, might be useful antisense targets.   This decision emphasizes the challenges of patenting gene sequences now that methodologies for sequencing and analyzing genes have become more powerful. 

Background

Antisense oligonucleotides are single strands of DNA or RNA that are complementary to a chosen sequence.  Antisense oligodeoxynucleotides (antisense DNA) inhibit protein expression from a gene by binding to specific, complementary RNA, thereby inhibiting ...

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