Can Medical Facts Be Patented?

from the big-decisions dept

The current session of the Supreme Court will be deciding on some important patent-related issues. The battle between MercExchange and eBay over the 'Buy It Now' feature will be interesting, though equally intriguing is today's hearing in the case of Laboratory Corp. v. Metabolite Laboratories. We wrote about this case and the broadening scope of what is patentable, yesterday, but the specifics here deserve to be reinforced. Metabolite claims a patent on the discovery of a correlation between raised levels of the chemical homocystein, and a defficiency in two B-vitamins. This is a naturally occuring phenomenon, but the company demands a royalty any time a B-vitamin defficiency is tested using this knowledge. As the court itself has put it, the case revolves around whether a company can "claim a monopoly over a basic scientific relationship used in medical treatment". If so, we've noticed that legs tend to kick when a mallet hits the knee; it seems like a good way to test a patient's reflexes. Our application is in the mail.


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  1.  
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    enoch choi, Mar 21st, 2006 @ 9:09am

    no they can't

    i don't understand how this got to the supreme court. there should be a lot of prior art in scientific journals, with documentation of plenty of physicians prescribing B vits for homocystine deiciency to decrease cardiac events.

     

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  2.  
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    Ben, Mar 21st, 2006 @ 9:34am

    Re: no they can't

    Even if there is no prior art, you shouldn't be able to patent a fact. Scientific or otherwise, if they do determine that facts are patentable then start sending in your applications for 2+2=4.

     

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  3.  
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    ZOMG CENSORED, Mar 21st, 2006 @ 9:56am

    Patents != Money

    Medical Company A sees Computer Company A making money off of Computer Company B by suing claiming patent hooey. Medical Company A decides to sue Medical Company B for money claiming patent hooey.

    Computer Company C sees Medical Company A making money off of Medical Company B by suing claming patent hooey... and the cycle continues...

    Once the seed of idiocy is planted, the stupid grass grows fast, and not even Logic Herbicides can get rid of that weed. This will continue until someone sets up some huge fine for legal cases involving patents that are thrown out due to lack of evidence/ forethought.

     

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  4.  
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    Mike, Mar 21st, 2006 @ 9:59am

    I just patented Air, and Kindness.

    and Porn!

     

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  5.  
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    krached, Mar 21st, 2006 @ 10:02am

    begs the question

    This article really does beg the question because it assumes this is a fact. The problem in patent law and copyright as well, is what is a fact? That question seems so simple, but is such a slippery concept. If I come up with a way to process iron ore, that is patentable. But isn't this just a fact or series of facts that I discovered? I think the fact distinction is simply no longer helpful. Patently-O is probably the best discussion of this case I have seen.

     

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  6.  
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    Mike agian, Mar 21st, 2006 @ 10:05am

    I also just patented the patent and royalties.
    So individuals who patent must pay me royalties and subsequently pay royalties for paying royalties and so forth.

     

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  7.  
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    Mike, Mar 21st, 2006 @ 10:07am

    again*

     

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  8.  
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    chard, Mar 21st, 2006 @ 10:09am

    patents are stupid altogether. They hinder progress in the name of making money.

     

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  9.  
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    Anonymous Coward, Mar 21st, 2006 @ 10:23am

    look ma!

    I just patented the fact(s) that people need air to live, semi-conductors run modern computers and use electricity, Adolf Hitler was the leader of the Nazi party, and that George W Bush is the current US president!

     

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  10.  
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    Posterlogo, Mar 21st, 2006 @ 10:34am

    Don't get jumpy.

    If there is prior art (in this case, published journal articles by researchers NOT affiliated with the company in question), then the phenomenon should not be patentable. If the company indeed discovered the correlation, and came up with the idea of a 'process' to diagnose vitamin deficiency, then it is theirs to patent. There is way too much 'stick-it-to-the-man' mentality here without any knowledge of the particulars of the case. No, facts are not patentable. However, applications are. The application here is a diagnostic tool.

     

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  11.  
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    Anonymous Coward, Mar 21st, 2006 @ 10:35am

    patents

    i wonder if i can patent getting an erection when veiwing porn?

     

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  12.  
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    Anonymous Coward, Mar 21st, 2006 @ 10:40am

    Re: begs the question

    First, your analogy doesn't work. There's an inherent difference between observing a relationship in nature and discovering a method to do something.

    Secondly, if this patent wins out, we're in big trouble. Now pharmacutical (most likely spelled wrong) companies can charge the doctors AND the patients.
    Pharmacutical company: We've noticed a relationship between our drug and this condition. If you take this drug, this condition lessens. Anytime you prescribe our drug to lessen this condition BASED on the fact that we told you what our drug does, we want a royalty.
    Then they just go ahead and charge the patient for the drug as well.

    Anybody who thinks this patent has any merit whatsoever should be shot in the head. Patenting an observation is retarded. Thank god patents didn't exist a really long time ago. When someone realized, "hey, we die when we suffocate cause we need to breathe to live," lucky for us they didn't go ahead and say, "hey, everybody, attention please! anytime you breathe based on the idea that not breathing causes death... i want money from you. Thank you, that is all."

     

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  13.  
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    Anonymous Coward, Mar 21st, 2006 @ 10:43am

    Re: Don't get jumpy.

    they're not patenting the process. They're patenting the correlation itself. They observed something, and now they want money anytime somebody else observes it too.

     

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  14.  
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    Denis, Mar 21st, 2006 @ 10:46am

    Re: begs the question

    This article really does beg the question because it assumes this is a fact. The problem in patent law and copyright as well, is what is a fact? That question seems so simple, but is such a slippery concept. If I come up with a way to process iron ore, that is patentable. But isn't this just a fact or series of facts that I discovered? I think the fact distinction is simply no longer helpful. Patently-O is probably the best discussion of this case I have seen The problem here is that they're not patenting a physical process someone initiates and completes with changes resulting from that process. They're trying to patent an observation. If they win, someone could (if there was no prior art) patent listening to a heartbeat to diagnose heart murmur or something like that. The problem is that companies are trying to quickly cash in on their discoveries. Before, a discovery such as the one they had built the company reputation, attracting better workers and more business, generating revenue in the long run. They just want the money now.

     

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  15.  
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    NL_heren, Mar 21st, 2006 @ 10:58am

    "Patent the observation", totally agree it shouldn't happen. If they made a machine to perform said observation, THAT would be something they could patent.

     

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  16.  
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    Antimatter, Mar 21st, 2006 @ 11:04am

    Prior

    This is just my gut reaction, but how can you not see the prior art here? The prior art has nothing to do with a study of any type, the prior art is simply the human body. This happens and that's all there is to it. You can't say "It only started to happen/exist when I discovered that it did!" can you? I also think that a simple grammar/logic mistake is being made here that they teach you about in grade school:

    DISCOVER != INVENT

    This is a discovery of a fact, not an invention and, therefore, not patentable. Can someone please just explain this to the justices so that we can move on with our lives knowing that we won't have to pay a royalty every time we get sick?

    "Well we found you have an elevated level of X, which would usually point to a certain disease, but if you want to know what it is it'll be an extra $50. If you can't afford it then you're fine and can be on your way."

    *sigh*

     

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  17.  
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    Joe Smith, Mar 21st, 2006 @ 11:16am

    Re: Prior

    DISCOVER != INVENT

    Quite so. Columbus discovered America, Newton invented calculus.

     

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  18.  
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    Bubba Nicholson (profile), Mar 21st, 2006 @ 11:22am

    Independent scientist need to get paid

    If you take the grease off of a man's face and give it to his misbehaving son or daughter, goodbye to their juvenile delinquency. 100 mg p.o. for first effect. Too much and they want to be president. Jealousy is the main side effect. The mouth-kissing partner of the brat gets suspicious--even homocidal, so watch out. Wine's ethanol cuts the sebaleic acid (and the other more common free fatty acids, alcohols, etc. in human facial sebum), so a little swig after taking the pheromone helps remove those tell-tale traces from the brat's mouth. Intuition is a chemosense. Give a boy too much of his mom's facial secretion without Dad's antidote around and the well-behaved boy likes boys instead of girls. Pheromones regulate human fertility, just like they do in little animals. Pheromones or deficiency of pheromones cause virtually all human illness, including mental illness (e.g. Anorexia Nervosa, depression, child abuse, schizophrenia, mania, etc.), sociopathy (crime, delinquency, apathy, divorce, apathy, etc.), autoimmune disease (diabetes, Alzheimer's disease, arthritis, MS), most birth defects (Bruce effect = blighted ovum, stillbirth, spina bifida, etc.), most infectious disease (pheromones are why some people die and others have no reaction to pathogen exposures), and cancer. Aspirin, quinine, taxol are all semiochemicals and have beneficial effects for that reason.

     

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  19.  
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    Bob, Mar 21st, 2006 @ 11:32am

    Re: Re: Prior

    Actually Newton DISCOVERED the Calculus. he discovered the relationships of numbers. Einstein DICOVERED Relativity. Otherwise he probably would have patented it.

     

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  20.  
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    Baffled, Mar 21st, 2006 @ 11:33am

    Re: Independent scientist need to get paid

    Wow, Bubba. You should patient insanity, since we've got clear evidence of your prior art.

     

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  21.  
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    Bubba Nicholson (profile), Mar 21st, 2006 @ 11:41am

    Independent scientists need to get paid

    There you go, that's the future of medicine.

     

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  22.  
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    Posterlogo, Mar 21st, 2006 @ 11:47am

    Re: Re: Don't get jumpy.

    The home-pregnancy test is a diagnostic based on an enzyme-linked assay (or ELISA). It was discovered that certain hormone levels could be reliable indicators of pregnancy. That discovery is patented, as it should be. The application of that discovery is patented and lisenced. Perhaps if there were no patents on such discoveries, the discoverer would never publish the results, and would choose rather to make the product himself and sell it as proprietary technology. Many companies sell scientific chemicals (sometimes all natural) that are simply a unique formulation or mixture that has the desired effect. One such bottle - $100. If the end user had the formula: $1. I hate that. I would prefer knowledge be made public and applications lisenced based on important discoveries. I don't like the idea of the Metabolite patent in theory, but it does have an expiration date. And I sure as hell would not just want to give away my discovery that cost me $xxx to make so that some one else can capitalize on it.

     

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  23.  
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    John Lambert, Mar 21st, 2006 @ 11:50am

    Think BIG

    Think of all the patents GOD could get!!


    I wonder who his attorney is?

     

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  24.  
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    Bubba Nicholson (profile), Mar 21st, 2006 @ 11:54am

    Re: Re: Independent scientist needs to get paid

    We both should patient (sic) illiteracy, eh? So test it yourself why don't you? You probably have relatives rotting in jail somewhere, don't you? The more than 700 pheromonal chemicals in human face grease work synergistically and species-specifically. The grease on your face has individual specific concentrations of the bioactive components and consistent concentration ratios, known to be biologically detectable, vary anatomically. Different kisses for different biological purposes.

    Scientists today must remain shackled to massive institutions with expectations of loyalty. Hardly a world of invention and progress with 99.99% of humanity shut out, eh?

     

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  25.  
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    Michael Jozwik, Mar 21st, 2006 @ 12:38pm

    Re: Re: Independent scientist needs to get paid

    And people wonder by medical cost keep skyrocketing.

     

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  26.  
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    Thomas Anderson, Mar 21st, 2006 @ 1:19pm

    Lawyers Vs. Everyone else

    How the majority of the population responds to this article: "That's outrageous! Lawyers can't patent basic scientific fact! Why do witches burn? Because they are made of wood!" and the like.... How LAWYERS respond to this article: "If the correlation turns out not to be explicitly empirical and our client endures pain as a result, can we sue those who created the patent for alot of money?" The proper conclusion? 1. The majority of lawyers are going to hell. 2. They don't want to be lonely so they decided to drag us there too. 3. We can't do anything about it because in order to fight them we have to become lawyers, thus continuing the cycle.

     

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  27.  
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    S. Brockway, Mar 21st, 2006 @ 1:22pm

    I know almost nothing about patent law, but it seems to me, at the very least, one should not be able to patent an observation.

    On observation is simply the first step in the scientific process. Without an observation, a hypothesis, and perhaps later a theory, cannot be developed that might lead to a unique and "patentable" process.

    The fact that an observation is not patentable is one of many reasons for a good deal of scientific secrecy and jealousy over the ages. Labs working in secret to develop a process, based on a unique idea (or observation) before the other guy.

    For example, if I notice a correlation between vitamin B and raised levels of the chemical homocystein, I might want to keep that "observation" secret until I could develop an associated process.

    My concluding point being I don't see how the whole scientific process can be distilled to its first step. That would be like saying, prior to the construction of the first car, that I have noticed motors will spin wheels. Would any process that then utilizes the observation that motors will spin wheels be subject to my patent?

     

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  28.  
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    Angry Dude, Mar 21st, 2006 @ 4:20pm

    Mudak

    Did you read what you just wrote ?

    Lawyers just do what their clients tell them to do.
    It's not about lawyers, it's all about money, lawyers are just a tool to settle money disputes.
    Would you prefer a revolver as a tool instead ?

     

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  29.  
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    Zeroth404, Mar 22nd, 2006 @ 6:13am

    Nothing shoiuld be patented.

     

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  30.  
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    Anonymous Coward, Mar 22nd, 2006 @ 6:17am

    Re: Re: Prior

    "Columbus discovered America"

    Acutally, Collumbus was a moron that lead to the Pillage of America from the Natives. Get your fact straight :-)

     

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  31.  
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    Professor HighBrow, Mar 22nd, 2006 @ 10:04am

    Prior

    Columbus discovered America"
    Acutally, Collumbus was a moron that lead to the Pillage of America from the Natives. Get your fact straight :-)


    Exactomundo. The friggin' idiot thought he was in India for cripes sake!
    Columbus DID NOT "discover" America. Man, the idiocy level of some people is ridiculous.

    So, I suppose whoever "discovered" the planet Jupitor [by observation, of course] ought to have been allowed to patent that planet, eh?

    I "discovered" that when I pee a liquid comes out, so people that are trying to stop peeing by using my dicovery of correlation, owe me money because they can't stop pissing themselves now since I noticed the correlation between taking a leak and the leakage of urine into their trowsers, and can't afford my fee of $50 per oz.

    Thank you.

     

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  32.  
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    Zeroth404, Mar 24th, 2006 @ 7:17am

    ""Columbus discovered America"

    Acutally, Collumbus was a moron that lead to the Pillage of America from the Natives. Get your fact straight :-)"

    "Anonymous Coward"="Zeroth404"

    I really ouhta stop doing that.

     

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  33.  
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    Anonymous Coward, Aug 6th, 2009 @ 2:43pm

    Re: Think BIG

    This reminds me of a joke.

    A priest was accidentally sent to hell. When God realized that his gatekeeper made a mistake he asked the devil to send him to heaven. The devil refused. God said he'll sue. The devil said, "how are you going to win, all the lawyers are down here."

     

    reply to this | link to this | view in thread ]


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