However, the core invention here is the process of detecting the fetal-DNA from the blood plasma that had previously been discarded as waste and uses technology to solve the medical dilemmas created by amniocentesis. The practical limits found in the the claim are themselves inventive because no-one had ever accomplished the combinations of claimed steps. The PCR process actually creates new DNA molecules – this case should be analyzed under . There are several scientifically validated methods of accomplishing the goals of the invention that do not infringe the patent — thus, the claims are not preemptive.
MBHB attorney Kevin Noonan has filed an Amicus brief on behalf of BIO supporting the patentee’s position.
The FAA provides that agreements to arbitrate are generally "valid, irrevocable, and enforceable", except in circumstances – such as fraud or "unconscionability" – that would permit revocation of a contract under applicable state or federal law. In addition, it is not entirely clear when a dispute will be considered to have "arisen" for purposes of the new prohibition.
That discovery was important because it would allow for non-invasive prenatal genetic testing without risking the health and safety of the unborn child.
The inventors (Oxford Professors Lo and Wainscoat) had previously discovered that human fetal DNA existed in small quantities within the pregnant mother’s blood plasma.
In its responsive brief, the patent challenger pushes in several ways.
Most squarely, the brief recognizes that the discovery of a natural phenomena may be very important, but even when a critical breakthrough, that discovery is not patent eligible.