by Mike Masnick

Filed Under:
diagnostics, patents

mayo clinic, prometheus

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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  1. identicon
    Anonymous Coward, 22 Jun 2011 @ 7:22am


    > Apparently nothing is new.

    "What has been will be again, what has been done will be done again; there is nothing new under the sun." Ecclesiastes 1:9

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