Congress Now Pushing 'Bring Back The Patent Trolls' Bill

from the oh-come-on dept

Back in April we warned about a truly terrible plan by some in Congress to obliterate the last few years of the Supreme Court fixing our broken patent system, and flinging the doors wide open to patenting genes, medical diagnostics, and software (all of which the Supreme Court has mostly rejected as abusive and monopolizing nature). One had hoped that after having explained to them how disastrous such a bill would be, that its backers might think carefully in crafting the final bill. Instead, Senators Tom Tillis and Chris Coons, along with Reps. Hank Johnson and Steve Sivers instead decided to double down with a bill that would massively stifle innovation.

They claim it's to "restore predictability and stability" in our patent system, but that's laughable. It is to massively increase the universe of patent-eligibility to include a wide range of things that almost anyone who understands innovation would consider it insane to allow patents to restrict. It would literally obliterate the three key Supreme Court cases that rejected patents on genes, medical diagnostics, and most software, and open the door to patenting "laws of nature," "abstract ideas" and "natural phenomenon." Really. It specifically says that:

No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

It would also bring us back to a world in which the default is everything is patentable:

The provisions of section 101 shall be construed in favor of eligibility.

No one doing actual innovation would support this. The only people who could possibly support this are patent lawyers and patent trolls. It will reopen the floodgates of bad patents and patent trolling, flooding the courts with bogus lawsuits on broad and vague patents against actual innovators. It is a dangerous bill that Congress must reject. We lived through nearly two decades of patent trolls destroying innovation while Congress twiddled its thumbs and did almost nothing to stop it. The Supreme Court finally stepped in (again and again and again) to stop the nonsense -- and now these elected officials want to bring us back to such a world?

Filed Under: chris coons, gene patents, hank johnson, inventions, medical diagnostics, originality, patent trolls, patents, section 101, software patents, steve sivers, supreme court, tom tillis

Supreme Court Seems Ok With Patenting Medical Diagnostics

from the bad,-bad-news dept

We've covered the Mayo v. Promethus Labs case for a while now. This is the lawsuit over the patentability of medical diagnostic techniques. If that sounds crazy to you, you're not alone. Promethius got a patent on a specific way of testing for a disease, and got into a legal fight with the Mayo Clinic, because Mayo dared to diagnose without paying them. Tragically, an appeals court said this was fine. Many doctors were, quite understandably, horrified at all of this. The idea that they could violate a patent merely by understanding the science and running a test to detect an ailment? Horrifying and ridiculous. When the Supreme Court agreed to pick up the case, we had hoped it meant that some common sense might prevail.

However, that's looking doubtful. The oral arguments were just heard in the case, and as Tim Lee points out, they don't sound good. You can read the full transcript below, but the oral discussion was extremely narrowly focused on the patentability of this particular diagnostic test, with many comments suggesting that the patentability of a general diagnostic test is not even in question. In fact, Mayo's own lawyer seemed to concede the point and didn't even bother to argue the issue:

Unfortunately, the justices seemed oblivious to these arguments. And the man who should have been making them, Mayo counsel Stephen Shapiro, completely ignored them. Instead, he seemed to concede the legality of medical patents in general, and focused on nitpicking the details of Prometheus's patent. Specifically, he noted that the patent covers a broad range of metabolite levels and applies for many different autoimmune diseases, and argued that this made the patent invalid.

Asked by Justice Kennedy if a more specific and complex diagnostic technique involving "two or three different drugs" could be eligible for patent protection, Shapiro said yes. "If it leaves room for others to have their own tests with different numbers and different procedures so that it isn't just one test for the whole country, then yes, if it's specific enough," he said. "The specificity is the key."

Justice Scalia pointed out that making patent-eligibility turn on how complex the diagnostic strategy was, or on how many diseases it claimed to address, was totally unworkable. Shapiro's proposal, he said, was "not a patent rule that we could possibly apply."

Justices Scalia and Breyer showed some skepticism that patents could cover the use of scientific correlations in medical practice. But the other justices expressed no such skepticism. At one point, Justice Kagan offered some advice to Prometheus's lawyer. "What you haven't done is say at a certain number you should use a certain treatment, at another number you should use another treatment," she said. "I guess the first question is why didn't you file a patent like that? Because that clearly would have been patentable. Everybody agrees with that."

Except, as Lee notes, not everyone agrees with that. In fact many different groups, including the American Medical Association, argued exactly the opposite in briefs on the case.

For what's it worth, what's discussed in the oral hearing is not always all that relevant to how the case actually turns out. The briefs are often more important. But, either way, it's not looking good. After a few good years in the mid-2000s, where the Supreme Court really beat back patent excesses, the more recent patent courts have been timid to the point of ridiculous. In the end, it seems like this case may turn out like the Bilski case, where the Supreme Court had the opportunity to rule broadly on software and business method patents, but chose to ignore the issue, focusing only on the specific patent in question.

This seems like a huge waste of the Supreme Court's time and collective intellect. People look to SC rulings to set precedent and clarify points of law. Ruling extremely narrowly based on just the specifics of the patent itself doesn't clear up any confusion. Instead, it just makes things worse.

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

Appeals Court Says Patenting Basic Medical Diagnostic Process Is Just Fine

from the yikes dept

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.

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