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
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.
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Filed Under: diagnostics, patents
Companies: mayo clinic, prometheus
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A relevant video is the following.
http://www.techdirt.com/articles/20100519/0404029486.shtml
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Apparently nothing is new.
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Re: Nothing New
No question, this is what the founding fathers had in mind. The patent system is so-o-o wonderful.
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Re: Re: Nothing New
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Trivia Questions
b) Who got the patent on the lightbulb?
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Re:
"What has been will be again, what has been done will be done again; there is nothing new under the sun." — Ecclesiastes 1:9
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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.]
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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.
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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.
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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!
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Another New Benefit
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?
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Re: Another New Benefit
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.
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Not Hard to Guess
Not really. It's not hard to guess which way a pro-corporatist, pro-IP, anti-individual freedom, 2nd Amendment-dissolving court will go.
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Re: Not Hard to Guess
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bilski redux
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