Intellectual Property Infringement: That's Why We Have This Rice To Eat Today

Supreme Court Will Review The Patentability Of Medical Diagnostic Tests

from the we-can't-tell-you-if-you-have-cancer,-since-that-would-infringe dept

Tue, Jun 21st 2011 7:10pm — Mike Masnick

For a few years now, we've been following the case of Prometheus Laboratories v. Mayo Collaborative Services, which looked into the question of whether or not certain medical diagnostic tests could be patented. Doctors are vehemently against such patents, believing, completely correctly, that it's ridiculous to patent a test to determine if someone has a particular ailment. The Mayo Clinic has pointed out the ridiculousness of all of this, and has been fighting this for the precedential value:

"The patents are based on observations of the laws of nature," says David Herbert, chief administrative officer for Mayo Medical Laboratories. "We chose to make a stand." Such "observational" patents increase costs, slow innovation, and worsen patient care, he says. "It doesn't allow the test to be performed close to the bedside, and there's no ability to have second opinions."

Unfortunately, as we noted last December, the appeals court for the Federal Circuit (CAFC, whose motto sometimes feels like "patent everything!") decided that it's perfectly fine and dandy to patent such diagnostic tests. At the time, we noted that this issue would likely end up at the Supreme Court... though I partly wondered if the Supremes would wait for the slightly related Myriad Genetics case on patenting genes.

Instead, the Supreme Court is forging ahead directly on the medical diagnostics issue, and has agreed to hear the case. Of course, it's quite difficult to predict which way it will go. For a period of about five or six years, it seemed like the Supreme Court (which had mostly ignored patent issues for a while) had taken a bunch of patent cases in order to smack down CAFC for its expansionist and overly broad rulings. However, with a new court in place, the last few years have shown the pendulum swing back towards supporting CAFC's thinking on many of these issues. Hopefully this case ends up going the other way, and the Supreme Court makes it clear that patenting a medical test is not what the law was intended for, and should not be allowed.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: diagnostics, patents
Companies: mayo clinic, prometheus

20 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 Jun 2011 @ 7:46pm

"Hopefully this case ends up going the other way, and the Supreme Court makes it clear that patenting a medical test is not what the law was intended for, and should not be allowed."

A relevant video is the following.

http://www.techdirt.com/articles/20100519/0404029486.shtml
[ link to this | view in chronology ]
Anonymous Coward, 21 Jun 2011 @ 9:01pm

Transistors are really just an application of what nature does. A lightbulb is just a combination of things that nature does. The internet is just a manipulation of electrons, which come from nature.

Apparently nothing is new.
[ link to this | view in chronology ]
- Anonymous Coward, 21 Jun 2011 @ 9:40pm
  
  Re: Nothing New
  What are you talking about! Why, if patents can increase the cost of a test by a factor of 100, that is new! Take it from being a trivial cost to something that only rich people can afford, now THAT is innovation! Better still, those nice rich people get to live and those nasty poor people get to die because they cannot afford to have the test until it is too late. What a benefit! That is a NEW "positional good" for rich people.
  
  No question, this is what the founding fathers had in mind. The patent system is so-o-o wonderful.
  [ link to this | view in chronology ]
  - Aerilus, 22 Jun 2011 @ 4:34am
    
    Re: Re: Nothing New
    maybe someone should patent using patents for social Darwinism.
    [ link to this | view in chronology ]
- Lawrence D'Oliveiro, 21 Jun 2011 @ 9:44pm
  
  Trivia Questions
  a) Who invented the lightbulb?
  b) Who got the patent on the lightbulb?
  [ link to this | view in chronology ]
- Anonymous Coward, 22 Jun 2011 @ 7:22am
  
  Re:
  > Apparently nothing is new.
  
  "What has been will be again, what has been done will be done again; there is nothing new under the sun." � Ecclesiastes 1:9
  [ link to this | view in chronology ]
- Jose_X, 23 Jun 2011 @ 1:34pm
  
  Re:
  There is a difference between information (and algorithms) and a new composition of matter (ignoring interpretations of "new" and the "promote progress" issue). One is totally abstract as it can be represented in many different ways (like software) depending on the machine which may carry out those algorithms and the one also is not tangible. The other is closer to the opposite.
  
  I suspect the Court will rule just like the Bilski ruling, essentially punting on the "trickier" software/hardware implementation question and addressing the pure algorithm question.
  
  [Disclaimer, I haven't read the court documents or patent(s), so I may be wrong about what this patent is about.]
  [ link to this | view in chronology ]
Anonymous Coward, 21 Jun 2011 @ 10:01pm

All this chaos comes about because it seems so unscientific to say "well, lets make sure the people that did the good stuff get X reward. I just made up X but I think it is fair" but really thats all we want to do. Be honest. Everything else is just intellectual fluff to make you think youre basing your intellectual property laws on something legally rational and mechanical. But reality refuses to be categorized so easily and the law cannot codify every shade of gray, so we always have teams of legal-tards pitted against each other thinking that theyre the ones correctly interpreting reality by way of the law.

Someone did the science. Someone devised the approach. Someone invented the first device which everyone else will at least partially rip off. They all deserve compensation. Only asinine systems are available for making sure they get it without causing poor people to get overcharged and die (too much).

Why keep this ridiculous system? Let's just make panels, several of which assess the situation independently, deciding who deserves how much. They combine their results, discard outliers, and then dispense intellectual property protections with caveats that after $X deserved money is earned by means of the protections, that the protections vanish. $X deserved money is related to the investment, to the risk, to the value to society, to the need to society of the product--its related to REALITY--instead of legaltard wrangling somewhere down the rabbit hole.
[ link to this | view in chronology ]
- Richard (profile), 22 Jun 2011 @ 3:00am
  
  Re:
  >et's just make panels, several of which assess the situation independently, deciding who deserves how much. They combine their results, discard outliers, and then dispense intellectual property protections with caveats that after $X deserved money is earned by means of the protections, that the protections vanish.
  
  Or we could abolish patents - put up taxes a little bit and institute a scheme like the one used in the UK after each of the world wars.
  [ link to this | view in chronology ]
- Aerilus, 22 Jun 2011 @ 4:43am
  
  Re:
  first of all i'd like to point out that it is very rarely one individual who brings an idea into fruition or even puts the idea together all by themselves esp in today's world where all the easy-ones have been discovered it is ussually a team of people working together I feel this is an important point because it seem like so many people just think a man goes into the toilet groans and squeezes a little and comes out with a compact nuclear powered battery innovation does not happen in a vacuum. as for the second part of your post I don't think very many people here are advocating communism which is exactly what you are describing. I think the general gist is that there need to be limitations on Intellectual products esp in today world where things move to fast we do not need to be issuing patents that last decades. and we do not need to be pretty much making patent applications un-appealable by virtue of making it impossible to give them a final rejection
  [ link to this | view in chronology ]
- I'm afraid not..., 22 Jun 2011 @ 9:15am
  
  Re:
  "Someone did the science. Someone devised the approach. Someone invented the first device which everyone else will at least partially rip off. They all deserve compensation."
  
  No, none of them deserve compensation. Just because you do something doesn't mean you deserve something for it. I make music, but no one compensates me for it and nor should they.
  
  The *reason* people do the science, devise an approach, and invent the device is to either benefit their fellow human beings (awwww!), or more commonly to make money. But you don't make money by expecting people to hand you money, that's just silly.
  
  You make money by selling things. You create a business model that can monetize this work for you. THAT'S your compensation. And no, patents that force people to hand you money is not a business model (or at least, shouldn't be given the mess it brings in the current state of things)
  
  Remember kids, just because you do something doesn't mean you deserve something for it!
  [ link to this | view in chronology ]
Anonymous Coward, 21 Jun 2011 @ 10:21pm

Another New Benefit
There is another wonderful new benefit of having patents for medical tests. It stops this tedious business of research into improved tests, for 20 years! When a test is patented, can anybody else (other than the patent holders) do research into improving it? No, not unless they get a license from the patent holders. Are the patent holders going to allow new research? Hell no, they are cleaning up very nicely from the existing test. The time they want an improvement to happen is just before the patent runs out and not before. Plus they want to make sure they own the patent on the improved test. Allow someone else to do research? You must be joking.

Nobody else gets to do research, only the patent holders. The patent holders do as little as possible, as late as possible, then get another patent. Keep the money tree gushing money. It's a great life for the lawyers.

OK, the poor people are going to get to die a lot more. Who cares about that?
[ link to this | view in chronology ]
- Steve R. (profile), 22 Jun 2011 @ 11:44am
  
  Re: Another New Benefit
  Collateral damage of our (negatively) evolving patent system is the suppression of "reverse engineering". The concept of "reverse engineering" has become a silent victim without a vocal advocate.
  
  Patents are not longer about patenting a specific real device doing a specific task that would allow others to develop their own devices to do the same task. Patents are now about seizing control of an entire concept of accomplishing a "task" and then preventing any competitive alternatives from being implemented.
  [ link to this | view in chronology ]
6, 21 Jun 2011 @ 11:23pm

Take note mike because it is this kind of stand that it would take to end software patents. Nobody will ever do it other than big companies, and they're all in on it.
[ link to this | view in chronology ]
- Nicedoggy, 22 Jun 2011 @ 2:07am
  
  Re:
  Are you talking about the Asian giant companies that keep pawning the American ones?
  [ link to this | view in chronology ]
Aerilus, 22 Jun 2011 @ 4:32am

You know if i didn't know any better i would swear we had a republican for president.
[ link to this | view in chronology ]
abc gum, 22 Jun 2011 @ 5:24am

Think I'll patent the taking of one temperature, or maybe blood pressure.
[ link to this | view in chronology ]
Anonymous Coward, 22 Jun 2011 @ 4:17pm

Not Hard to Guess
Of course, it's quite difficult to predict which way it will go.

Not really. It's not hard to guess which way a pro-corporatist, pro-IP, anti-individual freedom, 2nd Amendment-dissolving court will go.
[ link to this | view in chronology ]
- Jose_X, 23 Jun 2011 @ 1:59pm
  
  Re: Not Hard to Guess
  However... A Court with 8 of these 9 justices rejected the Bilski business method patent 9-0, possibly rejecting the bad lower court 1991 State Street decision along the way and reaffirming traditional SCOTUS decisions of past decades about the unpatentability of pure algorithms.
  [ link to this | view in chronology ]
patent litigation, 27 Jun 2011 @ 8:12pm

bilski redux
Granting cert in this case will mean, if nothing else, that the Justices will have to get off the fence and perhaps make the patent-eligible-subject-matter determination that they strenuously avoided making in the Bilski decision.
[ link to this | view in chronology ]