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Invitae v. Myriad Genetics

Invitae v. Myriad Genetics

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Published by PriorSmart
Official Complaint for Declaratory Judgement in Civil Action No. 3:13-cv-05495: Invitae Corporation v. Myriad Genetics, Inc. Filed in U.S. District Court for the Northern District of California, no judge yet assigned. See http://news.priorsmart.com/-l9zJ for more info.
Official Complaint for Declaratory Judgement in Civil Action No. 3:13-cv-05495: Invitae Corporation v. Myriad Genetics, Inc. Filed in U.S. District Court for the Northern District of California, no judge yet assigned. See http://news.priorsmart.com/-l9zJ for more info.

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Published by: PriorSmart on Nov 27, 2013
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602139191
- 1 -
 
COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL
Case No.
PILLSBURY WINTHROP SHAW PITTMAN LLP
 
KIRKE M. HASSON (SBN 61446) kirke.hasson@pillsburylaw.com RICHARD L. BLAYLOCK (SBN 212947) richard.blaylock@pillsburylaw.com COLIN T. KEMP (SBN 215408) colin.kemp@pillsburylaw.com Four Embarcadero Center, 22nd Floor Post Office Box 2824 San Francisco, CA 94126-2824 Telephone: (415) 983-1000 Facsimile: (415) 983-1200 Attorneys for Plaintiff, INVITAE CORPORATION UNITED STATES DISTRICT COURT  NORTHERN DISTRICT OF CALIFORNIA INVITAE CORPORATION, a Delaware corporation, Plaintiff, vs. MYRIAD GENETICS, INC., a Delaware corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) E-FILING Case No. COMPLAINT FOR DECLARATORY JUDGMENT DEMAND FOR JURY TRIAL Plaintiff INVITAE CORPORATION (“Invitae”) by way of its Complaint for Declaratory Judgment against MYRIAD GENETICS, INC. (“Myriad”) alleges the following: PARTIES 1.
 
Invitae is a Delaware corporation with its principal place of business at 458 Brannan Street, San Francisco, California 94107. 2.
 
On information and belief, Myriad is a Delaware corporation, with its principal  place of business at 320 Wakara Way, Salt Lake City, Utah 84108. On information and belief, Myriad is the owner or exclusive licensee of the following United States Patents related to
 
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602139191
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COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL
Case No.
Breast Cancer Susceptibility Gene 1 (“BRCA1”) and/or Breast Cancer Susceptibility Gene 2 (“BRCA2”) (together “BRCA1/2”) or the mutY homolog gene (“MUTYH”): U.S. Patent  Nos. 5,747,282; 5,753,441; 6,033,857; 6,051,379; 6,951,721; 7,250,497; 7,470,510; 7,622,258; 7,838,237; 7,670,776; and 7,563,571. The foregoing patents are referred to herein collectively as the “Myriad Patents,” and each Myriad Patent is attached hereto.
See
Exhibits 1-11. JURISDICTION AND VENUE 3.
 
This action arises under the Patent Laws of the United States, 35 U.S.C. section 100,
et seq.
, and the Declaratory Judgments Act, 28 U.S.C. sections 2201 and 2202. 4.
 
This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. sections 1331, 1338(a), 2201(a) and 2202. 5.
 
Venue is proper in this judicial district pursuant to 28 U.S.C. sections 1391(b) and (c) and 1400(b), because a substantial part of the events giving rise to Invitae’s claims occurred in this district. INTRADISTRICT ASSIGNMENT 6.
 
Pursuant to Civil Local Rule 3-2(c), this action is properly assigned to any of the divisions in this district because it is an intellectual property action. GENERAL ALLEGATIONS 7.
 
This is an action to declare the Myriad Patents invalid and not infringed by Invitae. 8.
 
Invitae is a genetic diagnostics company with a Clinical Laboratory Improvement Amendments-certified laboratory that offers customizable, clinically-relevant next-generation sequencing-based genetic testing services. One of Invitae’s key innovations is that its genetic test uses state-of-the-art advances in genetic testing to provide a single test for numerous genes of interest at less than the cost of most single gene tests today. Thus, Invitae’s comprehensive test offers the sequencing of over 200 human genes, all for less than the cost of what others might charge for a test that sequences one or two.
 
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602139191
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COMPLAINT FOR DECLARATORY JUDGMENT; DEMAND FOR JURY TRIAL
Case No.
9.
 
Among the 200+ genes of an individual that can be sequenced in Invitae’s groundbreaking all-in-one test are the BRCA1/2 and MUTYH genes. But Invitae performs its sequencing using a very different approach than that claimed by the Myriad Patents. 10.
 
 Nevertheless, Myriad asserts that Invitae’s genetic sequencing test infringes the Myriad Patents. Indeed, just yesterday, November 25, 2013, Myriad sued Invitae in the United States District Court for the District of Utah, asserting infringement by Invitae of the Myriad Patents.
See University of Utah Research Foundation, et al.
 
v. Invitae Corporation
, Case No. 13-cv-01049-EJF (United States District Court, District of Utah) (the “Utah Action”). Invitae intends to move to dismiss the Utah Action, and believes that such a motion will be granted. 11.
 
Myriad’s filing of the Utah Action, however, makes it inescapably clear that an actual and justiciable controversy has arisen and presently exists between the parties with respect to the validity and infringement by Invitae of the Myriad Patents. 12.
 
On the one hand, Myriad has expressly accused Invitae of infringing the Myriad Patents. 13.
 
On the other hand, Invitae asserts that it does not infringe the Myriad Patents, asserts that those patents are invalid, and denies Myriad’s claims to the contrary. For example, over half of the Myriad Patents relate to the BRCA1/2 genes; mutations or alterations of those genes as indicators of enhanced susceptibility to cancer; compositions and tools made of those genes (or fragments thereof); and methods for detecting the presence or absence of mutations/alterations in the sequence of a patient’s BRCA1/2 gene sequence. But the very different approach taken by Invitae for its BRCA1/2 genetic test is not covered by any valid claim of a Myriad Patent. 14.
 
For example, certain Myriad Patents merely claim DNA “primers.”
1
 
See, e.g.
, Patent No. 5,747,282, claims 16 and 17 (primer claims); Patent No. 5,837,492, claims 29 and 30 (primer claims). Still others require as elements the use of DNA primers to hybridize to and amplify certain genomic DNA sequences (
e.g.
, the sequence or a fragment of the sequence of
1
 “DNA” is the abbreviation for deoxyribonucleic acid.

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