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The court in DCD Partners relied on another decision by the SDNY involving Phoenix Life, titled United States Bank Association v.
There, the SDNY held that an implied covenant of good faith under California law could apply even if the insurer had discretion to raise its COI rates.
The SDNY believed that DNA' s existence in an 'isolated' form does not transform it into something 'distinctly different in character' from the non-isolated DNA contained in the human gene sequences.
The SDNY decision in Myriad Genetics on the isolated DNA claims appears to run counter to such established Federal Circuit precedent as Amgen v.
However, as under Amgen and Fiers isolated DNA can be conceived and reduced to practice, and can be the subject of interference proceedings under, inter alia, 35 USC [section] 102(g), it follows a fortiori that it is patentable subject matter under Section 101 of the Patent Act, contrary to the holding by the SDNY in Myriad Genetics.
Howard is hesitant to speculate as to the causes for this drop in activity in the SDNY, but notes that it makes this a two-horse race, with the majority of the ANDA activity occurring in Delaware and New Jersey.
Initiating an action in such a jurisdiction could result in a ruling even before the SDNY case is resolved.