Government’s Myriad Patent Ineligibility Argument Based on High School Science



Donald B. Verrilli Jr., who retired June 25 as U.S. Solicitor General, presented the government’s arguments in two patent cases before the Supreme Court during his five years in office (subordinates argued 13 others).  To many patent holders, the results couldn’t have been worse. 

Verrilli played his part in the high court’s decisions to limit patent eligibility for life sciences- and software-related inventions in Association for Molecular Pathology v. Myriad Genetics Inc. (2013) and in Alice Corp. v. CLS Bank International (2014), respectively. 

Pharmaceutical and biotech industry members may be particularly disturbed by Verrilli’s admission in an “exit interview” with NPR: The last science class he took was as a junior in high school. 

Verrilli credited Francis Collins, director of the National Institutes of Health, for helping him get up to speed in preparing for Myriad. NIH “genius scientists” gave him a three-hour tutorial on genetics and biochemistry and he was ready to go. 

Then again, it might have been a longer course in genetics and biochemistry than any of the nine justices he confronted had. Their college degrees were in English literature (Thomas), government (Ginsburg), history (Kagan, Roberts, Scalia and Sotomayor), philosophy (Breyer), political science (Kennedy) and public and international affairs (Alito). 

Myriad’s counsel, Gregory A. Castanias of Jones Day, Washington, and his opponent Christopher A. Hansen, staff attorney with the ACLU, had been fighting the case for three years and clearly understood the underlying science.

Whether anyone else in the room understood what they were saying is debatable.