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
    I'm afraid not..., 22 Jun 2011 @ 9:15am


    "Someone did the science. Someone devised the approach. Someone invented the first device which everyone else will at least partially rip off. They all deserve compensation."

    No, none of them deserve compensation. Just because you do something doesn't mean you deserve something for it. I make music, but no one compensates me for it and nor should they.

    The *reason* people do the science, devise an approach, and invent the device is to either benefit their fellow human beings (awwww!), or more commonly to make money. But you don't make money by expecting people to hand you money, that's just silly.

    You make money by selling things. You create a business model that can monetize this work for you. THAT'S your compensation. And no, patents that force people to hand you money is not a business model (or at least, shouldn't be given the mess it brings in the current state of things)

    Remember kids, just because you do something doesn't mean you deserve something for it!

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