Top Ten No. (1) Sequenom, Inc. v. Ariosa Diagnostics, Inc., Supreme Court No. 15A871, remains controversial as a case that could open the door to a merits affirmance and confirmation of the anti-patent rulings in Mayo and Myriad. To the extent the certioraripetition reprises arguments before the Federal Circuit, certiorari ideally should be denied. See Top Ten Patent Cases (pp. 2-6)(attached).
Playing Russian Roulette with the Patent System: Denial of certiorari would stop the bleeding, denying the possibility of a merits affirmance. Such denial of certiorari would leave only the less formidable obstacle of gaining reconsideration of the issue in Sequenomthrough an en banc proceeding at the Federal Circuit in some future case with different arguments.
In contrast, grant of certiorari would open the door to a merits affirmance that would further cast in stone the negative rulings in Mayo and Myriad.
Save us from our “Friends”, “Animus curiae”: To the extent the certiorari petition merely reprises the same line of argument as at the Federal Circuit, amici briefing should be withheld at the certiorari stage. Such briefing would merely publicize petitioner’s case and make it more likely that certiorari would be granted.
Of course, if certiorari is granted, then amici briefing certainly will be important as a last ditch effort to keep the door open to patent-eligibility.