Supreme Court Will Review The Patentability Of Medical Diagnostic Tests

from the we-can't-tell-you-if-you-have-cancer,-since-that-would-infringe dept

For a few years now, we've been following the case of Prometheus Laboratories v. Mayo Collaborative Services, which looked into the question of whether or not certain medical diagnostic tests could be patented. Doctors are vehemently against such patents, believing, completely correctly, that it's ridiculous to patent a test to determine if someone has a particular ailment. The Mayo Clinic has pointed out the ridiculousness of all of this, and has been fighting this for the precedential value:
"The patents are based on observations of the laws of nature," says David Herbert, chief administrative officer for Mayo Medical Laboratories. "We chose to make a stand." Such "observational" patents increase costs, slow innovation, and worsen patient care, he says. "It doesn't allow the test to be performed close to the bedside, and there's no ability to have second opinions."
Unfortunately, as we noted last December, the appeals court for the Federal Circuit (CAFC, whose motto sometimes feels like "patent everything!") decided that it's perfectly fine and dandy to patent such diagnostic tests. At the time, we noted that this issue would likely end up at the Supreme Court... though I partly wondered if the Supremes would wait for the slightly related Myriad Genetics case on patenting genes.

Instead, the Supreme Court is forging ahead directly on the medical diagnostics issue, and has agreed to hear the case. Of course, it's quite difficult to predict which way it will go. For a period of about five or six years, it seemed like the Supreme Court (which had mostly ignored patent issues for a while) had taken a bunch of patent cases in order to smack down CAFC for its expansionist and overly broad rulings. However, with a new court in place, the last few years have shown the pendulum swing back towards supporting CAFC's thinking on many of these issues. Hopefully this case ends up going the other way, and the Supreme Court makes it clear that patenting a medical test is not what the law was intended for, and should not be allowed.
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Filed Under: diagnostics, patents
Companies: mayo clinic, prometheus

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  1. identicon
    Aerilus, 22 Jun 2011 @ 4:43am


    first of all i'd like to point out that it is very rarely one individual who brings an idea into fruition or even puts the idea together all by themselves esp in today's world where all the easy-ones have been discovered it is ussually a team of people working together I feel this is an important point because it seem like so many people just think a man goes into the toilet groans and squeezes a little and comes out with a compact nuclear powered battery innovation does not happen in a vacuum. as for the second part of your post I don't think very many people here are advocating communism which is exactly what you are describing. I think the general gist is that there need to be limitations on Intellectual products esp in today world where things move to fast we do not need to be issuing patents that last decades. and we do not need to be pretty much making patent applications un-appealable by virtue of making it impossible to give them a final rejection

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