Solicitor General says no---Myriad proves.
Guigliuzza & Koivula 23 [Paul, Pyry; 2023; Professor of Law at Temple University James E. Beasley School of Law, Research Assistant at Temple University James E. Beasley School of Law; SSRN, “Stepping out of the Solicitor General's Shadow: The Federal Circuit and the Supreme Court in a New Era of Patent Law,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4178110] dedeepya
These disparities in outcomes raise the question of: why? Why is the SG more than twice as successful at persuading the Court when it is an amicus in a patent case as compared to when it is a party? For starters, the roles are inherently different. When the SG is an amicus, it adopts the role of a “mediator” or “advisor” to the Supreme Court and is expected to take the “long view,”188 even sometimes presenting arguments that contravene the practices of the federal government. For instance, in Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 189 the SG’s position—which the Supreme Court ultimately adopted—was that isolated DNA is not patent-eligible subject matter because it is a “natural phenomenon” but that artificially created DNA sequences (socalled cDNA) are sufficiently man-made to be patent eligible.190 In its brief, the SG explained that, though the Patent Office had been issuing patents on isolated DNA for several years, the litigation had “prompted the United States to reevaluate whether such patents are consistent with the settled principle that patent protection does not extend to products of nature” and that, “[b]ased on that review, the United States concluded that . . . isolated DNA is not patent eligible subject matter.”191 Notably, officials from the Patent Office were not listed on the cover of the SG’s brief, as is customary in patent cases192 and other cases in which a federal agency is involved.193