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Medicine Patents Science

Supreme Court Legitimizing Medical Patents? 251

Posted by samzenpus
from the prior-broken-arm-art dept.
RobinEggs writes "A case before the U.S. Supreme Court Wednesday addressed the legality of medical patents. From the article: 'The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient's blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical "indicate a need" to raise or lower the drug dosage. The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations.'"
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Supreme Court Legitimizing Medical Patents?

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  • by killfixx (148785) * on Thursday December 08, 2011 @09:13AM (#38301902) Journal

    Looks like it's time for that revolution.

    Damn, and here I was hoping to never have to befriend an extremist militia.

    Moving to Canada or Australia sounds good, but, like they say, "the grass is always greener".

    • I think it's time to put a stop to it. And it will not using the courts or lawyers.
      • by devjoe (88696) on Thursday December 08, 2011 @09:58AM (#38302294)
        It will only stop when somebody attempts to apply the same strategy to the legal profession. Then, with any luck, one of two things will happen:
        1. 1. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, and finally come to realize why this is such a problem in other areas, and finally fix it.
        2. 2. It succeeds, and everything does grind to a halt until Congress passes a massive overhaul to change it all (making it just retroactive enough to negate all patent lawsuits against their own overhaul.)
        • by Niedi (1335165) on Thursday December 08, 2011 @10:08AM (#38302386)
          or 3. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, completely failing to realize that this is also a problem in other areas.
          • by durrr (1316311)
            Every retard patent is sapping efficiency from the system if enforced. So either patents become mostly unenforcable, or they are rabidly enforced and clogs the legal system entirely. Or they are rabidly enforced sucessfully and result in total collapse of society and everything else as ideas such as treating dehydration by drinking water and/or using photosynthetic non-domesticated organisms to generate O2 suddenly needs an annual license.
          • by rsborg (111459) on Thursday December 08, 2011 @02:06PM (#38305422) Homepage

            or 3. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, completely failing to realize that this is also a problem in other areas.

            This is exactly what happened in banking... they had a patent troll attack, and the bansters' government pets just made that entire sector immune [1] from the problem.

            So what you get is further distancing of sectors like banking and law from the rest of us... and increases likelyhood of a (more violent) revolution.

            [1] http://www.washingtonpost.com/wp-dyn/content/article/2008/02/13/AR2008021303731.html?nav=emailpage [washingtonpost.com]

        • 1. Patent a precise method used to record patent documents in a digital form on a computing device, a computing device with a touch screen, and a hand held computing device with a touch screen.
          2. Write software that can be used to record patent documents in a digital form, a vi macro would suffice.
          3. Sue patent trolls for patent infringement.
          4. Profit.
        • by jythie (914043)
          Unfortunately, what would probably happen is the patent office will simply say 'no you can not patent legal tactics/issues/etc' and that is the end of it. Carve themselves an exemption and allow the problem to continue. Kinda like how the banking industry got that wonderful exemption to patent suits in the new overhaul, it ended up ONLY applying to banks, even though it was tech companies that had originally lobbied for it.
        • You seem to be overlooking the fact that "grinding to a halt" is all that Congress understands these days.
        • by stiggle (649614)

          Actually - it would be better to apply the strategy to the politican lobbist 'profession'.
          That way you can profit from those pork barrel profiteering schucks on Capitol Hill.

          If you have the patent for lobbying & political donations then you can sue the MPAA, RIAA, oil & power industries :-)

        • It will never get past (1), as congress will exempt itself from the law, like it does with nearly every other regulation, and go about in their blissfully unfettered world.

        • by youn (1516637)

          I say we move to patent sitting in a court of justice and using a small hammer like device to call court to order :)
          then we patent electoral campaign fundraising

          either we get lots of money or we get the patent system changed in no time... either way we win :)

    • by gmuslera (3436) * on Thursday December 08, 2011 @09:51AM (#38302248) Homepage Journal
      Considering how US laws (specially patent and copyright ones) are push over other countries, the only way to get rid of it is at the source, not running away.
    • by buglista (1967502)
      cobblers - the grass is fuckin' brown in Australia mate
  • by Chas (5144) on Thursday December 08, 2011 @09:14AM (#38301910) Homepage Journal

    Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you!
    No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.

    Un-fucking believable.

    All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.

    • by antido (1825442) on Thursday December 08, 2011 @09:22AM (#38301974)

      All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.

      My hope is with you, buddy. Except I fear that whenever money is involved, ethics, humanitarianism and other socially awesome things go out the window.

    • by sociocapitalist (2471722) on Thursday December 08, 2011 @09:26AM (#38302024)

      Brazil had this idea:

      http://news.bbc.co.uk/1/hi/health/4059147.stm [bbc.co.uk]

    • by Theaetetus (590071) <theaetetus.slash ... m ['ail' in gap]> on Thursday December 08, 2011 @09:26AM (#38302028) Homepage Journal

      Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you! No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.

      Un-fucking believable.

      35 USC 287(c)(1): With respect to a medical practitioner's performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.

      There are no damages for infringement by a medical practitioner of a medical activity. No one's going to sue doctors. Stop the FUD.

      • Legal fees (Score:5, Insightful)

        by tepples (727027) <[moc.liamg] [ta] [selppet]> on Thursday December 08, 2011 @09:37AM (#38302114) Homepage Journal

        There are no damages for infringement by a medical practitioner of a medical activity.

        That doesn't mean the doctor won't have a pay a lawyer to convince a judge that 35 USC 287(c)(1) applies.

        • Re:Legal fees (Score:5, Informative)

          by datavirtue (1104259) on Thursday December 08, 2011 @10:11AM (#38302420)

          Indeed, patents have some how strayed wildly from their intended purpose. For instance, Monsanto is suing farmers who's fields have been pollinated (yes, through wind drift, and birds, and bees) from other neighboring farmers who happen to use their seeds (GMO, patented). This is not what patents are for! Patents are to protect Monsanto against other manufacturers copying their genetic seed developments. Yet Monsanto has successfully crushed farmers whose fields have been pollinated (from wind drift) and who refused to purchase their seeds--all under patent law! Judges have no knowledge of this system, and people cannot defend themselves properly against big business. This is a mess.

          • Re:Legal fees (Score:4, Interesting)

            by datavirtue (1104259) on Thursday December 08, 2011 @10:16AM (#38302472)

            My theory is that Monsanto launched this offensive to knock of balance those who would sue them because Monsanto's GMO crops pollinated and therefor contaminated their crop, be it organic or not. These GMO crops are not popular in other parts of the world, banned in certain parts of Europe--and refused by many others, so Monsanto is on the ropes and swinging wildly for fear that America will ban them as well. The seed business is a nasty one indeed.

            • They also don't allow you to take the seeds from the plants that you grow from their seeds. You have to buy new seed every year. I suspect that might be more of the reason. They really want to cover all angles so that people that are customers are forced to keep coming back every year.
            • Re: (Score:3, Insightful)

              by StikyPad (445176)

              Which is, frankly, stupid. ALL living things are Genetically Modified Organisms, it's just that the mechanism of modification is usually either more random (natural evolution), or takes longer (breeding and hybridization, AKA ranching and farming). Manipulating genes directly is both more efficient and more effective. If it wasn't, farmers wouldn't buy the seed.

              Now it's true that we don't really know the extent of the role that the genetics of our food supply plays in our health, but that's just as true

          • Re: (Score:3, Informative)

            by Grond (15515)

            The Monsanto cases typically involved farmers who intentionally harvested and planted GMO seeds, not accidental pollination. The most famous such case occurred in Canada, by the way, not the US [wikipedia.org].

            • Re:Legal fees (Score:5, Informative)

              by jonwil (467024) on Thursday December 08, 2011 @11:30AM (#38303238)

              There is a story (mentioned in the documentary Food Inc IIRC) about someone who owned a machine for cleaning soybean seeds so they could be re-planted. Monsanto went after him and basically said "unless you can prove that not a single Monsanto GM seed went through your machine, we will sue you"

          • Re: (Score:3, Informative)

            You are probably refering to Monsanto v. Schmeiser case [wikipedia.org]. Correct me if I'm wrong but there were no other cases like that.

            There is no-one sued just for having his crops pollinated with Monsanto's Roundup wheat. The farmer was sued because he knowingly planted Monsanto's seeds. On the other hand the judge also ruled against any financial compensation to Monsanto as the farmer did not gain anything by his actions.

            It still sucks that the farmer ended up paying a fortune for legal aid while not doing anything wr

            • by paiute (550198)
              Shut you fact-filled face! Monsanto seeds and McDonalds coffee are memes now which everyone knows the truth about without having to know the actual details.
            • by jedidiah (1196)

              > The farmer was sued because he knowingly planted Monsanto's seeds

              In other words, he merely could have had his field contaminated.

              That's the problem with this nonsense. People in the middle of nowhere planting nothing but traditional local crops can find that they've been cross contaminated with Monsanto crap.

              This is why "patenting life" is a very bad idea. It tends to do stuff on it's own like mutate and propagate itself. It does that because it is in it's nature to do this.

            • *rolls eyes* yet it's been ruled that the patent follows the gene.. meaning that in the event OF a case where a plant is naturally pollinated from pollen originating from a Monsanto 'product' the resulting plant is considered a Monsanto product and a 'unlicensed' one at that.

            • by gambino21 (809810)

              You are probably refering to Monsanto v. Schmeiser case. Correct me if I'm wrong but there were no other cases like that.

              From Wikipedia [wikipedia.org] "Since the mid-1990s, it has sued 145 individual US farmers for patent infringement in connection with its genetically engineered seed."

              Of course, it's not easy to determine whether the farmers planted the seeds intentionally, or if it was more survival of the fittest seeds, and over several seasons, the Monsanto seeds would be a large portion of the crop.

              The main point is that it shouldn't be possible to patent a gene sequence at all, since it's unlikely that DNA patents "promote the Progres

          • Re: (Score:2, Informative)

            Complete BULLSHIT. The cases where Monsanto sued farmers all involve instances where farmers intentionally planted seed which they knew contained unlicensed genetic material. There has never been a case including the famous Monsanto vs Schmeiser where accidental pollination was the sole event.

            • by jedidiah (1196)

              Sure. The farmer's own seed stock was sabotaged first.

              It should be Monsanto that gets raked over the coals by the courts rather than the other way around. They have created a dangerous product that tends to ruin the property of others. If not for the blatant "anti-individual" attitudes prevalent today, they would be eviscerated figuratively and literally.

              It's high time that preservation of seeds from one's crop became a constitutionally protected right. All of those hicks in Red States need to stop fixating

            • Re:Legal fees (Score:5, Informative)

              by rtfa-troll (1340807) on Thursday December 08, 2011 @01:12PM (#38304626)

              farmers intentionally planted seed which they knew contained unlicensed genetic material

              Lets parse that a little shall we.

              The farmer had a field next to a GMO field. The plants in the farmers own field got contaminated. Yes the farmer "knew about it" but it wasn't his fault and there was nothing he could do to stop it. There certainly weren't Monsanto reps running around offering to filter his seeds for free to identify which ones were GMO contaminated and which ones weren't.

              Now when you say "intentionally planted"; what you mean is that the farmer took his only seeds; the ones which were contaminated; and then planted them. So in the end, if the farmer wanted to use his own seeds from his own field he had no choice apart from "intentionally" planting seeds which had been knowingly contaminated by Monsatnto.

              Blaming the farmer is deeply disingenuous here. If Monsanto wants control of it's own genes then it should be responsible for ensuring that they don't contaminate other people's crops.

            • Re:Legal fees (Score:5, Insightful)

              by s73v3r (963317) <s73v3r AT gmail DOT com> on Thursday December 08, 2011 @01:50PM (#38305204)

              The idea that there can exist "unlicensed genetic material" is absurd on it's face.

          • by c6gunner (950153)

            Why do these lies constantly get modded up?

      • Re: (Score:3, Interesting)

        According to the article:

        "But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations."

        If anyone is spreading FUD it's the patent holder.
      • by Chas (5144)

        That doesn't mean they can't try.
        Still costs to go to court.

        Doesn't mean they can't sue the practice. The practice is a legal entity of itself.

        Doesn't mean they can't sue a hospital, clinic or other medical institution.

        There's also the possibility that this ruling may or may not supersede these provisions. Again, another long, drawn out, EXPENSIVE court battle.

        They're basically depending on someone giving them money to go the fuck away. And the shitty part is, it'd probably be cheaper than fighting it ou

      • Simple: for $20000, Medi-Jackass will offer to settle our of court, with both sides knowing full well that litigation will cost the doctor $100,000+. The doctor's insurance company will then inform him that if he screws up like that again, they will drop him, making him effectively unable to practice.

        See how easy that was?

      • by drinkypoo (153816)

        There are no damages for infringement by a medical practitioner of a medical activity. No one's going to sue doctors. Stop the FUD.

        If this goes through it's going to be illegal for you to use a competing test yourself, which is what they're actually afraid of. If you don't go to the doctor he can't try to sell you lipitor.

      • by canajin56 (660655)
        Yeah, except that this is in the Supreme Court now because they are suing doctors. Well, they're suing the clinic where those doctors offer treatment, but the law you quoted covers "related health care entities" which you would hope meant the clinic they work at! Apparently no court so far has felt that it does. And "we won't sue you Dr. Doctor, but we'll get a few million out of the hospital you work at and I don't think they'll be pleased with you" seems to more or less have the same net effect. Besid
    • This is about if a generic version of the drug can be sold now that the patent on the drug has expired. There are still use patents on it though. Though some uses are not patented. The downside is not that the patient would not receive medicine. But that the patient would receive expensive medicine instead of the generic.
      • by DJ Jones (997846) on Thursday December 08, 2011 @11:02AM (#38302888) Homepage
        Exactly. A similar example of this is the drug Propecia - the hair loss drug. Propecia is a 1mg dosage of Finasteride that goes for over $2 a pill and is patented so there's no generic option. The thing is, Finasteride isn't new, it has been around since the 60's in a 4mg dosage to treat prostate enlargement and hormonal issues, it isn't under patent anymore and costs about $.02 a pill. Merck came along a few years ago and claimed to invent the same damn drug for a different purpose and got an 8 year patent on it allowing them to jack the price for no good reason.
        • Cost of clinical trials/marketing the drug for the new purpose? Probably doesn't justify a 100X price increase but still its worth something.
          • If the drug already exists, then no, I don't think it's "worth something". Do you think Bayer would have been justified in seeking a new patent on ASA if it's dosage is heavily reduced and used to reduce the risk of heart attacks and strokes?

            • Drugs don't just magically get approved for new uses. Companies spend millions in trials and legal fees to get it approved for the new use. They then need to market it so that docs will actually prescribe it for that use, deal with insurance companies to make sure they will reimburse for the drug when used for that reason etc. How many 0.02c pills do you need to sell to get your money back? Should companies just not pay for the studies since if they are stuck selling the drug for pennies they can't recoup t
              • by lars_stefan_axelsson (236283) on Thursday December 08, 2011 @03:09PM (#38306278) Homepage
                The major cost of testing a new compound is to prove the drug is safe, i.e doesn't kill the patient, or has any other nasty side effects. Whether it actually does any good is almost left as an afterthought. Since (almost) all of that should be well established by the time someone comes up with an idea for a second use, then no, they should't be able to get a God damned patent for using the same drug for something new. They can got a patent for the drug, that's it.
    • Today a patent on titration, tomorrow on breathing.
    • by rnturn (11092) on Thursday December 08, 2011 @10:33AM (#38302618)

      It's bad enough that my family physician has to employ a couple of people whose sole job is to deal with the insurance companies all day long. Now it seems, if this idea is approved by the Supreme Court, they'll need to have a patent attorney on retainer to make sure they don't run afoul of some pharmaceutical company who found that a drug's effectiveness can actually be measured.

      I thought it was supposed to be a bad idea to have the government getting between the doctor and the patient. If this isn't government getting between me and my doctor, I sure as hell don't know what is.

    • by geekoid (135745)

      All I can hope for is people on /. will read and understand articles before posting...but clearly you have shown that hope is in vain.

    • I represent generic drug companies. I can tell you that brand operations do not go after, and would not go after, individual doctors. It would be impractical. Interestingly, the Caraco v. Novo Nordisk case heard on Monday by the Supreme Court was exactly about a situation where Novo Nordisk was going after Caraco not because of anything Caraco did, but because of what doctors and patients would do. So much for that straw man. The Supreme Court is dealing with a line-drawing problem in Mayo v Prometheus. Yo
  • Jumping the gun? (Score:5, Insightful)

    by Anonymous Coward on Thursday December 08, 2011 @09:14AM (#38301914)

    Just because they heard the case doesn't mean "Supreme Court Legitimizing Medical Patents".

    That's a troll headline.

    • This is slashdot, where troll headlines are serious business.
    • by AdamJS (2466928)

      Does it help a money-grubbing corporation, or an agency that has no desire but to screw over as many people as possible?
      Then you can generally assume the SCOTUS will vote that way.

  • by WOOFYGOOFY (1334993) on Thursday December 08, 2011 @09:15AM (#38301920)
    This is as basic as it gets. Can companies patent the use of facts? Let's see if they can get this right. If they do, at least we know there's an upper limit to their ignorance. If they can't , then it's the end of innovation in the US and the beginning of a stampede of smart, motivated people who want to do Good Things out of the US and into the EU or elsewhere. It's just that simple. Either we're free to innovate in this country, or we leave our country in favor of a land that offers more freedom and opportunity. Just like our forefathers did.
    • by TheDarkMaster (1292526) on Thursday December 08, 2011 @10:21AM (#38302516)
      "This is a basic intelligence test for SCOTUS"

      We are doomed...
    • by Hatta (162192)

      Sorry, we passed that bar a long time ago. There is no limit to the ignorance and malfeasance of the SCOTUS.

    • by sgt scrub (869860)

      or we leave our country in favor of a land that offers more freedom and opportunity

      See. There IS a benefit to living in a trailer.

    • RE: we leave our country in favor of a land that offers more freedom and opportunity. Just like our forefathers did.

      So.. Where do you plan to go?

      Anywhere that is comparable (Canada, Australia, etc...) is being bullied/manipulated/bought by US Gubbermint/Corps.

      In a race to the bottom, Canada and Australia are catching-up with the US' retarded laws. I give them 5 - 10 years tops before we are as locked-down and void of "motivated people who want to do Good Things" as the US.

      This is the "Stupid test" indeed.

    • by SirGarlon (845873)

      Either we're free to innovate in this country, or we leave our country in favor of a land that offers more freedom and opportunity.

      We may be free to leave this country, but it doesn't follow that we are free to move to another. There are plenty of smart, motivated people who are not welcome in the EU, for instance if they are too old.

    • Logically that is a ridiculous statement. Anything technological must be based on the use of facts or it wouldn't work.

      The development of a novel process or device with utility is simply the use of facts in a way that hasn't been previously accomplished.

    • by The Moof (859402)
      Based on other cases which have already received their decisions from SCOTUS over the past year, this isn't their intelligence test. They've already failed at protecting citizens, consumer protections, and very prominently shown they favor big corp/big gov over all else.

      The infamous "You can waive your right to class actions and the corporation gets to choose the arbitrator if you sue" case was my "as basic as it gets" test for them. And boy, did they fuck that one up.
  • by arthurpaliden (939626) on Thursday December 08, 2011 @09:15AM (#38301922)
    So the doctor needs a license from the patent holder to effectively administer the drug. Well I can see that generating a lot of sales of the drug. Not.
  • by Anonymous Coward on Thursday December 08, 2011 @09:25AM (#38302008)

    I know nothing about the US patent system - but my first thought on reading this was as follows.
    Proper administration of the drug is supposed to violate the patent.
    The drug in question is out of patent... (for years)
    Does this mean that there was an extended prior where the drug was not able to be administered correctly to start with, or does their argument cause the 'method' patent to be invalid on grounds of prior art which must have existed in order for the drug to be administrated properly in the first place.

    • by ceoyoyo (59147)

      I think w hat happened is that the drug was invented, it worked, and it was sold. Then later, someone figured out that it works better if the dose is adjusted depending on this metabolite level.

      That second discovery no doubt required work and money to test so if you're going to have a patent system that idea should be patentable. I agree the company has aver stepped the bounds by arguing that anybody who administers the drug even knowing about the metabolite is infringing the patent though.

  • Supreme Court, like all other government institutions has failed the country by abandoning the Constitution and aligning with special privileges.

    By the way, do not forget your rights if you become a jury - NULLIFICATION.

    You are not there only to find guilt of the defendant, you are there to question the morality of the law itself. Do not be bullied by the judges, who tell you that they are the law and you must only judge based on the law itself. Always remember - any proceeding where the individual is sta

    • Summary judgment (Score:5, Interesting)

      by tepples (727027) <[moc.liamg] [ta] [selppet]> on Thursday December 08, 2011 @09:40AM (#38302132) Homepage Journal

      By the way, do not forget your rights if you become a jury - NULLIFICATION.

      Which is one reason why a lot of litigants are so quick to get matters of law disposed of in summary judgment, so that the question of fact has no chance to even go before a jury.

      • by Grond (15515)

        Apparently you don't understand how summary judgment works. Summary judgment will not be granted if there is a genuine dispute as to a material fact (i.e. a fact that could affect the outcome of the case). The purpose of summary judgment is to resolve issues of law that would not be given to the jury, or to save the time and effort of a trial if the facts are undisputed. Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.

        • by tepples (727027)

          Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.

          That's sort of what I meant, but in the rush to get things posted before the bus left, I mistyped. I apologize.

    • by geekoid (135745)

      You're an idiot.

    • by dcollins (135727)

      "By the way, do not forget your rights if you become a jury - NULLIFICATION."

      Yes -- But don't tell the court about that under questioning! It'll get you bumped from the jury faster than anything else. (Yes: Proved from personal experience.)

      And at the same time don't outright lie about it -- at least one case of juror contempt over that from 1996, although overturned on appeal a few years later (web search: Laura Kriho).

  • Not really, not yet (Score:5, Informative)

    by Dachannien (617929) on Thursday December 08, 2011 @09:44AM (#38302174)

    I read the transcript [supremecourt.gov] of the arguments, and it wasn't really clear to me what way they were leaning. Sotomayor seemed mostly in favor of the patentee, while Breyer especially was critical of the patentee. But these are oral arguments, and justices can take devil's advocate positions during these in order to tease out certain details of the case. Figuring out how the court will swing based on the oral arguments is like reading tea leaves, especially when it comes to patent law.

    As for the correctness of the headline: This case is in the Supreme Court because an early summary judgment motion in the district court was granted, ruling that the patent is invalid. The case was appealed to the Federal Circuit, which reversed the ruling, and then Mayo appealed to the Supreme Court.

    This case only focuses on the question of patentable subject matter under 35 USC 101, i.e., what kinds of claims should be patentable. In particular, the question here is whether the claims are directed to an application of a law of nature (the metabolism of a certain drug administered to a patient) or to the law of nature itself. Laws of nature are not patentable in and of themselves, but applications of a law of nature can be, as long as the entire law of nature is not "pre-empted" by the claim. In other words, matter-energy equivalence, E = mc^2, is a law of nature. Particular applications of that principle can be patentable, but if the claims are written such that every conceivable application of the principle is covered by the patent, then the principle is pre-empted by the claim (i.e., they might as well have claimed that entire law of nature, because the claims effectively cover it entirely).

    Prometheus, and the federal government, both argue that the arguments that Mayo is making are better addressed when considering the claims against the prior art (i.e., under 35 USC 102 and 103). (This is in part because Mayo is doing a hamfisted job of arguing their case, probably because they don't want to sabotage some of their own medical treatment patents.) The issue is that prior art considerations require a time-consuming process called a Markman hearing, where the court decides how to construe the various terms recited in the claims, and usually thereafter, a jury decides whether the prior art covers the claims, which makes the process extremely uncertain. It's Mayo's hope that patents like this can be killed early on in the process by a judge, rather than putting all their money on double-zero and giving it a spin with a jury.

    TLDR version: Nobody really knows what SCOTUS was thinking during oral arguments. This isn't the end of the road for this case, even if Mayo loses, because prior art still has to be considered.

    • Thank you so much for posting this. I find the Supreme Court transcripts fascinating and agree with critics who argue the Supreme Court cases should be broadcast live on C-SPAN since they are infinitely more fun than watching an empty House do nothing all day.

      On the topic of the Supreme Court debating scientific issues, it's interesting that the National Academies Press publishes a manual [nap.edu] intended to educate judges on how to evaluate scientific evidence. The anecdotal evidence implies that not many of them

  • Older Americans know what previous art patent medicine Prometheus' management and counselors missed: Col. Colt's Lead Therapy.
  • Results should be reproducible*

    * unless you patent them, in which case HANDS OFF, other scientists!

  • http://www.scotusblog.com/2011/12/argument-recap-for-want-of-a-good-hypothetical/ [scotusblog.com] ...Over and over, the Court puzzled over how one could start with a law of nature, which is not eligible for a patent, and then find a way to expand on it that is creative enough to earn a patent. It is an inquiry, one of the Justices said early on, that might lend itself to the conjuring of “millions of hypotheticals.” But the hypotheticals that were forthcoming were not very helpful.

  • "patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations.'"

    This happens to involve doctor patient, but this type of things could apply to any service provider and customer.

  • Sorry, but the fact that your patient is still screaming in agony after the minimum dose of morphine can't be used as evidence that they might need more of the drug. That would infringe.

    We suggest rolling a six sided dice and scaling the dose based on that.

  • by forkfail (228161) on Thursday December 08, 2011 @12:40PM (#38304170)

    ... that Republicans were all worried about creating Death Panels, when in fact, they were defending them.

  • I got thirsty. My doctor asked me a few questions and told me to drink water from a sterilized vessel sold by this company, Corning I believe. It worked. Unbeknownst to us there was this patent for "method of detecting and correcting dihydrogen monoxide deficiency". We're in big trouble now.

    It really is that ridiculous, unless Slashdot is just being sensationalistic which I don't think they are. Also, another way DHM can get you in big trouble. That stuff's deadly. Stay away from it.

Those who do things in a noble spirit of self-sacrifice are to be avoided at all costs. -- N. Alexander.

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