Last year, we wrote how a bunch of doctors were quite worried
about an ongoing patent lawsuit, Prometheus Laboratories v. Mayo Collaborative Services. It involved a company, Prometheus, that claimed it could patent basic medial diagnostics
, and basically said no one (such as the Mayo Clinic) could diagnose patients in the same way without paying Prometheus. The whole concept was abhorrent to many doctors. Yet, as we worried, last year the appeals court (CAFC), as it has done so often, sided with the patent holders
. This summer, when the Supreme Court decided Bilski
, one thing it asked CAFC to do was reconsider the Prometheus case. It's now done so, and nothing much has changed. Once again, CAFC has said that basic diagnostic tests may be patentable
. Many also think (probably correctly) that this is a good indication that CAFC will also reverse a lower court ruling
in the Myriad Genetics case, concerning whether or not genes are patentable. If diagnostic tests are patentable, why not genes? Of course, all this really means is that sooner or later the Supreme Court is going to have to weigh in again, and hopefully it won't punt the issue like it did in Bilski.