Appeals Court Says Patenting Basic Medical Diagnostic Process Is Just Fine

from the yikes dept

Mon, Sep 21st 2009 9:22am — Mike Masnick

Over the summer, we wrote about an important lawsuit under appeal at the Federal Circuit, Prometheus Laboratories v. Mayo Collaborative Services, which looked at whether or not basic medical tests could be patented -- in this case, a method of calibrating medicine dosages based on a patient's metabolic response. Doctors were pretty freaked out by this idea that you could patent a method that seemed like basic science. While a lower court agreed, the appeals court has gone the other way and said that the method is patentable. The patent holders insisted that this patent was necessary because if it didn't get the patent it "would likely have a chilling effect on future medical discovery." That, of course, is ridiculous. The idea that you need a patent on basic diagnostic procedures to have people come up with them is ridiculous. Some think that there's a decent chance the Supreme Court will take up this case as well, but until then, we've got yet another case of patents being used to actively put lives at risk by telling doctors they can't do basic diagnostic procedures without paying up.

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Filed Under: basic science, medical diagnostics, patents
Companies: mayo clinic, prometheus labs

20 Comments

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Thomas (profile), 21 Sep 2009 @ 9:48am

Not helping people
The Labs and Pharm companies are NOT in the business of helping/curing people, plain and simple. They are in the business to make money. If they earn 10 million and their drugs/procedures help 100,000 people they are much happier than if they earned 4 million and the drugs/procedures helped 500,000 people. There's no reason for them to care whether people live or die unless they can possibly get sued if people die from their products; they are ONLY there to make money.
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Anonymous Coward, 21 Sep 2009 @ 9:54am

Re: Not helping people
Of course, with a capitalist system of health care, that is exactly what you would expect. If you want something different, socialize medicine.
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:Lobo Santo (profile), 21 Sep 2009 @ 9:56am

Re: Not helping people
Well, duh.

Again: This, like most all problems, can be solved with correctly applied explosives.
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Colin (profile), 21 Sep 2009 @ 10:00am

This sort of ruling should, in the long run be self correcting...I can see the discussion in the hospital now:

Sick Apeeals Court Judge "Just give me some pills to make me better"
Doctor: "I'm sorry, but due to patent problems exacerbated by you, I can't do any sort of testing on you to determine the appropriate dosage, because your drug plan won't pay the licensing fees to the lab holding said patent."
Sick Appeals Court Judge keels over and gets replaced (hopefully by someone more enlightened)
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Ryan, 21 Sep 2009 @ 10:01am

Re: Re: Not helping people
Right, because politicians are so much more concerned with people's well-being over their own political contributions. And because patients will be so much more concerned with efficiency and value in care when they're paying on someone else's dime.

This is not a capitalist system of health care, because there's so little competition and fluidity. The government has regulated the business extensively, which gives incumbents more or less free reign to offer whatever standard they want. The problem here, for instance, is an overbroad patent -- which is a monopoly on a specific process that the government provided.
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Anonymous Coward, 21 Sep 2009 @ 10:06am

Prior Art anyone
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Steve R. (profile), 21 Sep 2009 @ 10:17am

Disappointing.
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MCR, 21 Sep 2009 @ 10:27am

Rightful lawsuit?
The article states that Mayo had been using the technique for years, and Prometheus didn't pursue legal action until Mayo wanted to begin selling the technique (and calling it their own).

While I don't think something of this nature should be commercialized, the patent holder does have some ground for dispute. Whether the technique is patentable should be a separate issue in my mind.
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Anonymous Coward, 21 Sep 2009 @ 10:58am

This seems akin to patenting facts, or at minimum, the process used to acquire facts. Application of this logic seems real bad, and is like saying that a widely-used process, such as the process of tempering steel, needs a royalty payed to General Steel.

But any time something is considered "basic science" or "fact" within a group of practitioners, it should be considered public domain, and not subject to IP protections.

An IP attorney, and those whose primary income comes from practicing law (such as Court Judges) may very well view this as something that seems unique and interesting to them. But, it doesn't mean that a large group of practitioners, outside of the legal sphere of influence, don't already apply it every day haven't already accepted it as "fact" or "basic science."

And this is where we often run into the problem with the governance of IP law in general-- the way patents are granted is a problem because patent applications are often reviewed and granted by those who are not actively involved in the practice.
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Ron (profile), 21 Sep 2009 @ 11:08am

Ummm ....
... did they just get a patent for "trial and error"?
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Ryan, 21 Sep 2009 @ 11:56am

Re: Ummm ....
Next patent on the horizon - calibrating diagnoses based on observable patient symptoms...
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hegemon13, 21 Sep 2009 @ 12:11pm

Re: Re: Not helping people
Actually, patents are a government-granted monopoly that are the OPPOSITE of capitalism. If Pharma companies actually had to compete with one another, they would be forced to innovate constantly in order to stay ahead.
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annonymous coward, 21 Sep 2009 @ 12:30pm

Patenting Basic Processes
Why not try to get a patent on, say, the process of taking a patent infringer to court. Or even more basic, try to get a patent on the process of applying for patent. That has to be the ultimate...
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GJ (profile), 21 Sep 2009 @ 12:52pm

patent evaluation
Let's make a patent on a method of evaluating a patent.

I'm pretty sure there's money in licensing that!

How about a patent on evaluating political candidates. That means you would need a license before you can vote.

Then at last folks would be forced to make an informed decision before voting. Since that has never happened before, I'm pretty sure there is no prior art to this.

--GJ--
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anymouse (profile), 21 Sep 2009 @ 3:50pm

Time to patent the method of safely ingesting dihydrogen monoxide
Looks like time for a patent on a method of safely ingesting dihydrogen monoxide, along with a patent of testing for the presence of dihydrogen monoxide.

Or how about a patent on the method of obstructing standard scientific progress with unnecessary and irrelevant patent licensing standards.

At least we don't have 'database' patents yet, or one of these greedy companies would dump all the current drug info into a single database, patent it, then sue any other company who tried to even USE the name of an existing drug. And don't even think about it, I'm patenting this method so that when database patents are allowed in the US, I can sue all those greedy companies and make my fortune....
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another mike (profile), 21 Sep 2009 @ 4:36pm

patents vs chemistry 101
How would Prometheus Labs know they've been copied? Patients start recovering after getting the best dosage for their metabolism?

I can just hear some doctor defending it now. "What patent infringement? My lab tech learned that test in Biochem 101."
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Anonymous Coward, 21 Sep 2009 @ 4:37pm

I can see that no one has actually read the court's opinion and its application of the Bilski test formulated a few months ago.

Of course, Bilski is set for argument before the SCOTUS in November, so what effect a decision re Bilski may have on the rationale employed by the CAFC in Prometheus is not clear at this point in time.
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Derek (profile), 21 Sep 2009 @ 5:23pm

And we wonder why health care costs are so high.
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Robert A. Rosenberg, 21 Sep 2009 @ 9:09pm

Re: Time to patent the method of safely ingesting dihydrogen monoxide
Looks like time for a patent on a method of safely ingesting dihydrogen monoxide, along with a patent of testing for the presence of dihydrogen monoxide.

For those unfamiliar with dihydrogen monoxide (also known as DHMO) and its dangers, check out http://en.wikipedia.org/wiki/Dihydrogen_monoxide.
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Al Brown, 16 Oct 2009 @ 5:07pm

Re: Re: Not helping people
I have to disagree. If you want medical progress, you have to reward people when they innovate.

Of course, if you don't want progress, socialize medicine.
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