While the action filed by the ACLU was pending I checked with investor relations at Myriad to question whether the patents which were unchallenged by the ACLU would be sufficient to protect the company from competition from other labs who wanted to test for BRCA 1 and 2. They consistently took the position that the test was protected no matter what the court decided and with the court taking somewhat of a middle of the road position it seems fairly clear that they were right. Certainly if SCOTUS had decided in Myriad's favor there would be no doubt but now it seems that the new litigation will be equally important for the short term future.
To explain, the case filed against Ambry Genetics for patent infringement will be telling as to whether the company was right in that the test is patent protected. The news release indicates that the company is asking the court to issue a preliminary injunction to stop Ambry from selling the test. If Myriad prevails and the injunction is granted then the litigation becomes almost moot in that by the time the case gets to trial the patents will be expiring and it is a waste of time and money to take the case to trial. If the court does not issue the injunction and Ambry continues to test then they risk an award at trial of treble damages which could be a huge amount of money. In either case the filing of this lawsuit creates a chilling effect as to other competitors.
For the longer term the patents will expire and there will be competition and Myriad will simply have to do a better job and be more innovative then the competitors.