USPTO: Using Three Knowledge Bases To Diagnose Is Patentable

from the three-databases-makes-a-difference dept

Back in June, we wrote about the rather horrifying situation that Dr. Bob Shafer found himself in, facing a patent lawsuit over a fantastic resource of HIV-related data that he had been putting together for years, and which the community of HIV researchers have used for years. Shafer's employer, Stanford University, was threatened by a company, Advanced Biological Laboratories, claiming that the database violated its patents (6,188,988 and 6,081,786) on using databases for diagnostic decisions -- even though HIVdb predated either patent. There was some back and forth, and Stanford settled the dispute (much to Shafer's dismay) and a separate lawsuit commenced against Shafer himself, after he refused to abide by the terms of the original settlement.

Joe Mullin has an update on the situation and the one bit of good news is that the lawsuit itself has been settled, and Shafer really just needs to post a link to ABL's "response" to his claims.

But the more disturbing part is that the USPTO has upheld the '988 patent in question, despite over 200 pages of prior art submitted by Shafer and his lawyers. Why?

Even though doctors had used databases to help choose therapies to treat various ailments for decades before the first relevant patent application at issue was filed in 1998, Hughes said the '988 patent should be allowed. Her reasoning: the prior art references didn't distinguish a system with exactly three "knowledge bases." And that distinction alone--having three "knowledge bases"--is a patentable advance, Hughes decided.

Yes, you read that right. Even though people have used such knowledge bases for decision making for quite some time, the fact that we're talking about three knowledge bases suddenly makes it patentable. Because without patents, no one would have ever thought to use exactly three knowledge bases. Shafer and others are already pushing back on that and hoping to still invalidate the patent. Mullin notes that Ted Shortliffe, president of the American Medical Informatics Association, has joined Shafer in pointing out how ridiculous the idea that "three" knowledge bases makes some sort of meaningful difference:

This is a trivial distinction without a practical difference since multiple knowledge bases could be merged into a single entity and have long been separated into multiple representations largely for computational convenience and clarity.

Honestly, can someone explain how the USPTO is employing people who think that having three knowledge bases turns using knowledge bases for diagnostic purposes into a patentable invention?

31 Comments | Leave a Comment..

Another Example Of Patents Putting Lives At Risk

from the very-sad dept

This one's a bit old, but I finally got around to reading Joe Mullin's fascinating, but troubling, account which pits a Stanford professor and doctor against a French company, Advanced Biological Laboratories, that claims to own patents on (effectively) using computer data to help doctors make diagnostic decisions. If you want to see the specific patents, they are 6,188,988 and 6,081,786. At issue, is the fact that Dr. Bob Shafer has been working for years (actually, since before either patent was filed) on putting together HIVdb, an exceptionally useful database on HIV details that many researchers rely on to help figure out potential treatments to HIV. Except... of course, ABL claims that it infringes on those patents.

Since Dr. Shafer works for Stanford, ABL threatened Stanford, who brought in some lawyers who pointed out that the patents had very little chance of surviving any sort of review -- but Stanford, apparently anxious to avoid a long, drawn-out or costly lawsuit, agreed to settle the dispute, promising to put a warning note on HIVdb that using the system for commercial purposes might require a license from ABL. Shafer, who didn't know such a settlement was in the works, was quite upset to find out about it -- and refused to put the warning message on the site (eventually he put an edited version, hidden deep within the site, including his own opinion about how silly it was).

Shafer also has hired his own lawyer and is pushing forward to invalidate ABL's patents. He's also been learning more and more about how such patents are all too often used against their stated purpose, and how, rather than encouraging innovation, they're being used to stifle it and (more importantly) to put lives at risk. Shafer and his colleagues are reasonably horrified that Stanford gave in, noting that it only encourages such behavior, and enables ABL and others to pull the same sort of stunt against others.

Given that Shafer refused to live up to the terms of the deal that he had never agreed to in the first place, ABL moved forward and sued Shafer directly, and that case is now ongoing -- even as Shafer hopes to invalidate the patent through the Patent Office itself. The whole thing is yet another story of how patents are being used to stifle innovation -- and sometimes put lives at risk. It's tragic that we've been seeing so many such stories lately. Update: It's been pointed out that some of you might want to look at the great website Shafer has put together, at HarmfulPatents.org if you want to learn more.

316 Comments | Leave a Comment..