In Sequenom v. Ariosa, Eli Lilly, Eisai, Upsher-Smith, Pfizer and Etiometry as joint amici have boldly abandoned petitioner’s Question Presented. Reprising the unsuccessful argument made by the Government in Mayo, the amici say that the Question Presented should be that, “Given the current explicit statutory limitations on patenting in the Patent Act—and the proper interpretation of those limitations—should the Court’s judicially imposed implicit exception to subject matter considered to be eligible for patenting be abrogated, such that patentability and patent validity are to be determined solely under such explicit statutory provisions?”
The Road for a Recast Question Presented: The Court does have the (rarely used) power to ask the parties to brief its own Question different from that of Petitioner. Attached is an excerpt from updated sections of the monograph, FIRST TO FILE PATENT DRAFTING, § 1[b], New Approach in a New Administration in 2017 (pp. 57-63) which includes § 1[b][B], Eli Lilly et al Sequenom Amicus Filing, Mayo Déjà vu (focusing on the current petition).