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67 Stan. L. Rev. Online 1 (2014-2015)

handle is hein.journals/slro67 and id is 1 raw text is: 67 STAN. L. REv. ONLINE 1 May 5, 2014 PRELIMINARY INJUNCTIONS POST-MAYO AND MYRIAD Jacob S. Sherkow* The Supreme Court has recently expressed increased interest in patent eli- gibility, or patentable subject matter, the doctrine that limits the types of inven- tions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc.,1 in 2012, and Association for Molecular Pa- thology v. Myriad Genetics, Inc.,2 in 2013, represented the first broad re- strictions on patentable subject matter in over thirty years.3 And later this term, the Court will decide yet another patent eligibility case: Alice Corp. v. CLS 4 Bank International. While the effects of the Mayo and Myriad decisions on patent law have been widely discussed, they have recently played a fascinat- ing-and less explored-role in another area of law: preliminary injunctions. In several recent patent cases, the contours of Mayo and Myriad have driven dis- trict courts to deny preliminary injunctions on patent eligibility grounds. This has subtly altered the texture of the preliminary injunction standard in patent infringement disputes, causing district courts to place greater emphasis on dif- ficult, scientifically complex questions of patent eligibility at nascent stages of litigation. While time-and appeals-will tell whether this change remains via- ble, this shift in the preliminary injunction standard provides a fascinating, practical case study as to one law: the law of unintended consequences. MAYO AND MYRIAD In Mayo, the asserted patents claimed a method for adjusting the dosage of thiopurine drugs-useful in treating gastrointestinal disease but sometimes tox- ic-based on specific concentrations of the drugs' metabolites in patients' * Fellow, Stanford Law School, Center for Law and the Biosciences. Thanks to my excellent editors at the Stanford Law Review for their constructive comments. 1. 132 S. Ct. 1289 (2012). 2. 133 S. Ct. 2107 (2013). 3. In 2010, the Court decided another patentable subject matter case-Bilski v. Kap- pos, 130 S. Ct. 3218 (2010)-although the immediate effect of that decision has been un- clear. See generally Mark A. Lemley et al., Life After Bilski, 63 STAN. L. REv. 1315 (2011) (discussing the uncertain future effect of Bilski). But prior to Bilski, the Supreme Court had not restricted patentable subject matter since Parker v. Flook, 437 U.S. 584 (1978), thirty- two years earlier. 4. 717 F.3d 1269 (Fed. Cir.), cert. granted, 134 S. Ct. 734 (2013) (No. 13-298). 1

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