Section 101 patent-eligibility for biotechnology and pharmaceuticals stands at a critical junction: At some point in April 2016 amici briefs in support of the petition forcertiorari in the Sequenom case are now scheduled to fall due. Should the biotechnology and pharmaceutical communities file amici briefs in support of the petition?
The Critical “Question Presented”: The answer could be “yes” or “no”, largely keyed to how the Questions Presented are styled by petitioner. With anappropriate set of Questions Presented, the answer is clearly in the affirmative. Otherwise, amici briefs could well lead to a grant of certiorari in a case with serious, negative implications for the patent community; here, denial of certiorari would be the far better option which is best reached by refraining from amicus participation at the certiorari stage.
The issues and consequences are considered in a new paper, The Sequenom Predicate Issue: The “Question Presented” (attached.)