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Doctors Fight Patent On Medical Knowledge
I Don't Believe in Imaginary Property writes "Doctor's groups, including the AMA and too many others to list, are supporting the Mayo Clinic in the case Prometheus v. Mayo. The Mayo Clinic alleges that the patents in question merely recite a natural phenomenon: the simple fact that the level of metabolites of a drug in a person's body can tell you how a patient is responding to that drug. The particular metabolites in this case are those of thiopurine drugs and the tests are covered by Prometheus Lab's 6,355,623 and 6,680,302 patents. But these aren't the only 'observational' patents in medicine — they're part of a trend where patents are sought to cover any test using the fact that gene XYZ is an indicator for some disease, or that certain chemicals in a blood sample indicate something about a patient's condition. There are even allegations that certain labs have gone so far as to send blood samples to a university lab, order testing for patented indicators, then sue that university for infringement. Naturally, Prometheus Labs sees this whole story differently, arguing that the Mayo Clinic will profit from treating patients with knowledge patented by them. They have their own supporters, too, such as the American Intellectual Property Law Association." Prometheus doesn't seem to be a classic patent troll; they actually perform the tests for which they have obtained patents.
Patenting chicken soup and lots of liquids for treating colds?
Does this mean I can patent the method the body uses to convert O2 to C02 and then sue everyone?
I understand the need for patents, but I don't feel discoveries should be patented. If they were to devise a method to test for their discovery, patent that, but not the discovery itself.
There is no "I disagree" mod for a reason. Flamebait, Troll, and Overrated are not substitutes.
Naturally, Prometheus Labs sees this whole story differently, arguing that the Mayo Clinic will profit from treating patients with knowledge patented by them.
I think I recall a part in the book Jurassic Park where the man behind the dinosaur research explains why he used Cray computers to read dinosaur DNA and not cure AIDS. Simply put, he could charge whatever he wanted for entrance to a dinosaur park but would probably be lauded as a money hungry monster to charge that same amount to treat AIDS patients. Being that millions of AIDS patients would not be able to afford it.
So we're all going to jump on Prometheus Labs and talk about the scenario in which the Mayo Clinic informs a patient they may have disease X and that they have the ability to test for it, they just can't unless the patient pays $200 to Prometheus Labs or some such surcharge.
On the other hand, the research surrounding statistical analysis of correlation between diseases and body diagnostics will surely skyrocket as people race to patent these things. So, while I'd argue in favor of the Mayo Clinic, I have to admit that I'd rather have the ability to test myself for a disease for $X than to not be able to test for it no matter what the cost.
I guess it's the classic argument for patents. I'd be interested in hearing Prometheus Labs' pricing scheme. A modest one time fee per hospital? A once per use fee? Covered by insurance? What motive do they have to pour over this data and draw these correlations statistically without a monetary incentive of some sort to keep them going/make money?
My work here is dung.
Biological processes and should never be patentable. It would seem that something like this should go against the Hippocratic Oath.
I wanted to patent the process through which a person digests food into fecal matter, but clearly Prometheus already owns the patent on that one.
Such IPs seem indicative of the decay of our civilization. This wasn't the knowledge economy I was expecting.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
I just read that while health care costs for everyone have been increasing, the jumps (and occurrences of illnesses) have been highest for obese people.
Clearly, using obesity as an indicator of potential health risk is a highly valuable technique deserving of patent protection. Anyone who notices that they are overweight and think of trying to become healthier through diet and exercise should be sued for infringement! We need legislation to combat weight loss piracy!!!
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So the doctor can't be sued... Can the test manufacturer?
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That's a loophole to the medical practice exception that you could drive an ambulance through.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
A clear indicator that your patent system needs reform is that you allow patents on nature.
Having said that, Prometheus Labs are really the kinds of assholes that citizens in US society have been trained to fear: "Lawyer Mongering Freedom Trolls[TM]." If we do not stand up to the current leaders of our government (and their money hounds); we will find ourselves in a future where we become a product at conception, and thus will be subject to QA at the hands of [insert-favorite-greedy-oppressive-government-shill].
Feh.
"Be prepared, son. That's my motto. Be prepared." --Joe Hallenbeck
But I don't think that patents have any place in heathcare, ever. Aside from that, these observational patents are the most odious and absurd. These sorts of things are the realm of science, not commerce. Scientists have no need to patent discoveries, doing so undermines the very nature of science. When you apply that to medicine, you are causing some real human damage. This is absolutely unacceptable behavior and needs to be stopped ASAFP in my opinion.
To the haters: You can't win. If you mod me down, I shall become more powerful than you could possibly imagine
After all, I AM actually doing this. Not at this moment, of course...
So my "having a tommy tank" patent should be fine.
Collecting the fees will be embarrasing for the paying party. Which is a bonus!
http://www.yehplay.com/musics/Kevin-Bloody-Wilson-I-Gave-Up-Wanking/14668/
Enjoy!
Is this covered by the constitution? I'm not sure, "writings and scientific discoveries". It seems to be contrary to what the founding fathers had in mind to be able to patent "knowlege". But then again, they never had twoo hundred year long copyrights in mind, either.
It's a damned good thing patents expire in twenty yeras, as opposed to copyright. It's funny, you spend millions on an invention, thousands more patenting it, and the patent expires in twenty years. Meanwhile some dufus spends twenty minutes writing a song or a year writing a book and it's gravy train for the rest of his life.
I'm looking more for copyright reform than patent reform. Imagine if patents lasted that long? How much things would cost and the innovation that wouldn't have happened. It kind of explains the dearth of good music in this century, and why they can charge a buck or two for a download that should cost no more than ten cents.
Free Martian Whores!
This has at least two potentially controversial issues.
The first is the USPTO "we'll patent anything, including arse-wiping techniques" attitude, already familiar to Slashdot. I don't need to elaborate on that. Not here, anyway.
The second is how much right to protection from competition does a corporation have when it comes to essential needs, such as clean water and basic healthcare? At what point does such protection interfere with patients' rights to basic needs?
In other words, if a monopoly on a test allows a company to price that test however they like, how does this effect individual patients? How does it affect the population of patients with that disease? And how does it affect the general state of health care?
The way these questions are currently answered is part of the problem with Health Care in the US. Corporations and captured regulators make those decisions now, so medical decisions are treated as a business decisions... not as essential service decisions. And while healthcare businesspeople are entitled to make a reasonable profit, they operate as if they're entitled to maximize profits. And therefore the market holds them to the same standards as banks and other industries, e.g., they're failures if they don't maximize their rate of increase of profits.
This in turn leads to all kinds of secondary problems, such as inequitable access to health care, and a de-emphasis on preventive care, because it's much more profitable to sell Actos and Byetta to diabetics than preventing them from becoming diabetics in the first place. At what point do we say "STOP! This unrestrained capitalism is KILLING us!" and apply some sort of humane regulation??
I can see the fnords!
I understand the need for patents, but I don't feel discoveries should be patented.
A discovery cannot be patented by itself. To be patentable, there is an explicit requirement under US law for an "inventive step" to be taken. A discovery might cover the requirement for non-obviousness, and perhaps the requirement for usefulness, but a discovery is not an invention.
In the case of the cited patents (6,355,623 and 6,680,302), I think the non-obviousness part is severely lacking. Rephrased, their independent claims are for the combination of (i) treating condition X with drug Y, in which (ii) the dose of drug Y is adjusted based on the inferred level of drug Y in the bloodstream. Given that treating condition X with drug Y was already known, the step of adjusting the dose would be obvious to one of ordinary skill in that art (gastro-intestinal medicine). The method of inference is the "discovery" in question.
Both patents suck, but for other reasons.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
Why doesn't this give Mayo an automatic win? Or is the clinic not a provider AKA only the people that work for the corporation are providers, or ?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
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I patent death and you are all disallowed from dying. There Universal Healthcare solved.
Oh wait the US government already did patented DEATH. How do I know... The US government charges you to die (royalty) they Tax it.
>>with knowledge patented From the post, there's the problem. Facts, and knowledge, shouldn't be patented. You don't patent the fact that the earth has a moon. You don't patent the fact sex gets people pregnant. You patent tools that do things - such as TEST for a certain condition, help you to look at the moon more clearly, or keep people from getting pregnant.
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All patents either "cite a natural phenomenon" or imply it. It's the act of applying that knowledge in a new and non-obvious way that makes it patent worthy. So, are they arguing that this procedure is obvious to anyone who understands basic science (and if so then wouldn't there be a mountain of prior art to nullify that patent)?
.
Or am I missing something?
So where does that leave me?
I'm the director of an analytical chemistry facility located at a university. We perform exactly the kinds of analysis described in the patents routinely (though not directly from blood, for various reasons). At the moment we're trying to set up a partnership with another (larger) university that has a medical school and hospital. Strangely enough, they don't have an analytical lab like the one I head, so we hope to work with them performing such analyses.
Will we be protected, as "outside contractors"? Will I need to search the patent literature every time someone submits a sample, or if I need to develop a new analysis protocol?
I briefly read through the patents, and they are absolutely disgusting. They look like scientific or medical review texts, without even a hint of new methods or protocols that could be (maybe, barely) defensible as patentable. This is an outright claim on knowledge itself.
No they are medicine patent troll, which puts them in the same pot together with the Nazi troll and RIAA troll in Hell.
But that does not protect medical lab technicians who use or engineers who design testing systems for biological samples.
The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
For the next time, anyways.
1) Clinic ignores patent.
2) Patent owner sues clinic.
3) Clinic doesn't bother to show up, has summary judgement against them.
4) Clinic doesn't pay.
5) Clinic continues doing test.
6) Patent owner has some doctors etc., arrested.
7) Clinic points this out to TV.
8) Politicians step in, patent owner owned, because no politician wants to be seen as allowing people to die for so a corporation can make $.
Seems like a fairly routine use of the court of public opinion.
Why assume that? Pharma/biotech companies give millions to electoral campaigns, and employ thousands in many voting districts. As far as I'm concerned, Congress intended to do something very similar to what you've suggested -- to remove the medical safe harbor for all but a few medical purposes.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
I've lived in Japan several times, totaling six years there. One thing that I became aware of was how this very different society prioritizes different things, such that changing an established practice takes a different amount of effort or carnage.
I came up with the idea of "death quotient" from thinking about accidents and disasters, and how people react. Sometimes the reaction is to ignore that there's a problem, while other times the reaction is to change how things work. Every society has a different death quotient, based on how many people have to die for XX phenomenon to change. Take a busy unregulated intersection, for example -- how many people have to die in accidents there before folks put up a stop sign? A traffic light? A traffic camera? Or, how about healthcare policy -- how many people have to die before folks prioritize basic health education? Preventive medicine? Increasing the number of doctors per capita? Reworking insurance prices? Changing pharmaceutical safety regulations? Etc., etc.
So, looking at the death quotient in the US for healthcare policy, I'd hazard a guess that it's higher than in the rest of the developed world. Ultimately, it seems that people in the US just aren't as important as corporate profits. I sincerely hope this will change, markedly, quickly, and soon, but I'm also not naive enough to hold my breath.
Cheers,
"What in the name of Fats Waller is that?"
"A four-foot prune."
The phrase "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" shall be struck and repealed.
Alternative amendment if that would fails in Congress:
Strike the phrase "limited Times" and replace it with "14 years". If an artisan can't make profit off his works during the first fourteen years time, then too bad. Make it public domain so society as a whole can profit.
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
Hmm?
OK, how about where nature takes salacylic (sp?) acid and purifies it to a usable compound that won't make the patients worse.
Allright. No use there.
How about where in nature the incandescent light bulb exists.
The last one especially: the patent isn't on "making it light using electricity", it's how the hell you make it stop burning out all the time and still manage to make it cheap enough to be profitable.
You get the patent on getting around nature.
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I can imagine someone getting a patent for an apparatus or an invented method of testing something, if that method involves the need for an patentable apparatus. But to patent the testing for anything in itself is totally ridiculous. That would be like a patent of measuring temperatures if I happened to be the first one to discover a way to do that and deny everyone else the right to measure the temperature of anything unless they used *my* method.
I hope those patents will be blown out of the water and Prometheus will be sued back for damage done to patients.
What person will donate an airborne act of love?
So there's an exception in patent law that protects doctors from infringing patents, unless they infringe a patent. Good god.
Give me Classic Slashdot or give me death!
For one thing, there are new restrictions on "process" patents, and this would not seem to meet the new standards. As for utility patents, these would not meet the obviousness or prior art tests.
From the description given, it seems to me that these are just patent trolls, who should be taken out and shot.
Everyone loves to freak out about this, but the reality is that there is a safe harbor provision for doctors in the patent statute.
Yeah, but are medical thoughts the only ones that get "safe harbor" or do we risk breaking the law for coming up with other ideas (unless we first check that it's not really an inspiration and somehow was copied from a previous idea that has been "owned")?
Naturally, Prometheus Labs sees this whole story differently, arguing that the Mayo Clinic will profit from treating patients with knowledge patented by them.
Talk to your university legal department immediately.
I'm serious. Okay, first, get together with your department chair and maybe your dean. Talk to your collaborators and their bosses at the other university, too. Make sure everyone understands what a major problem this is. Then sit down with the lawyers. If you can convince them that this is a serious threat to your institution, there's a good chance they'll sign on to the case. Is your work NIH-funded? Then they might get on board too.
Academic researchers -- you know, the people who actually create the knowledge which IP vultures try to scavenge -- need to start fighting back. It doesn't mean we should try to take up every case that offends us, however tempting that may be. It does mean that when we hear about a case that might directly affect our work, we should see if there's something we can do.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
Naturally, Prometheus Labs sees this whole story differently, arguing that the Mayo Clinic will profit from treating patients with knowledge patented by them.
Um, I'm pretty sure that, as a 501(c)3 - Charitable Organization, Mayo Clinic can't profit from anything. Just a nit.
[ And now for the standard disclaimer: Legal advice is given by an attorney duly admitted to practice law after confidentially and candidly hearing your version of the facts and applying a specialized analysis of the facts and relevant law. This, however, is a silly post on the Internet, and not legal advice. No attorney-client privilege is created with anyone as a result of this post. Do not taunt Happy Fun Ball. If legal advice is what you want, go hire a competent lawyer. Don't ask slashdot. ] from Cpt Kangarooksi (Emphasis mine)
Faster! Faster! Faster would be better!
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Apparently Prometheus has not yet patented the behavior they're willfully engaging in that is commonly referred to as Ass-Hat.
ELOI, ELOI, LAMA SABACHTHANI!?
Medical Industry Artist Association, this is clearly an Intellectual Property violation. All data and correlations of data related to a persons health or well being are no longer your property. For a small fee though, they would be willing to let you have temporary access.
I couldn't have put it better than you just did. We, as a society find it useful to pursue this research, but no company can monetize it without patenting patently un-patentable procedures, so we should socialize the costs of the research. Thankfully, when the free market fails us, we do have other options besides letting some unscrupulous and selfish idiots bend us over a barrel.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Rephrased, their independent claims are for the combination of (i) treating condition X with drug Y, in which (ii) the dose of drug Y is adjusted based on the inferred level of drug Y in the bloodstream. Given that treating condition X with drug Y was already known, the step of adjusting the dose would be obvious to one of ordinary skill in that art (gastro-intestinal medicine).
I would imagine this sort of information isn't just obvious to someone of ordinary skill in gastrointestinal medicine, but I would hope "What factors (list 5) could affect a recommended drug dosage?" would be a entry-level med school question, and "levels of the drug in the patient's bloodstream" seems like one of the more obvious answers (after weight, age, side effects, etc, so maybe not in the top 5).
Fine. You own a patent on the test to detect this disease. If you won't let it be used, YOU must cure everyone who has the disease. Otherwise, we're going to bring a class action suit....
âoeAny society that would give up a little liberty to gain a little security will deserve neither and lose both.
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If they can patent a single gene, why can't I patent my whole DNA. That way the police cant use it without paying me royalties......Ha Ha....
I think the cadillac of the ambulance chaser would make it through that loophole side by side with the ambulance.
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A discovery cannot be patented by itself. To be patentable, there is an explicit requirement under US law for an "inventive step" to be taken.
While I usually cringe when thinking of responding to patent related topics here, the fact that this got modded up to "4, Informative" made me cringe more.. 35 USC 101 is the key to what can and cannot be patented in the US, and it starts: "Whoever invents or discovers any new and useful..." so, yeah "discoveries" can be patented. If you "discover" a new rock mineral that cures cancer, you are entitled to a patent on the mineral itself (given you can prove it's "usefulness", i.e. actually curing cancer).
Both patents suck, but for other reasons.
On this part, I completely agree, but hopefully things are different now that KSR caselaw is in place.
That's interesting - almost a reverse of a situation in Canada. In Canada the government was convinced by lobbyists that it was a social ill for women to know the sex of their fetus until late in the pregnancy (can't remember - maybe before third trimester). However the lobbyists didn't want a woman to be held responsible (punished) for trying to access this illicit knowledge about their body so the only one held responsible is the doctor administering the test requested by the woman. The fine is on the order of $250,000 and IIRC there is jail time attached as well.
No wonder doctors don't like giving straight answers about what they think or do.
The tyrant will always find a pretext for his tyranny - Aesop
This is clearly an attempt to patent laws of nature and mental processes -- they claim to have patented the correlation of metabolite levels with toxicity, and the "business method" of thinking about adjusting the dosage of a class of drugs based on a particular kind of test result. Hopefully this will be thrown out. I wonder, however, what the court would say had the patent been for a specific algorithm for changing the dosage, implemented as a computer program. I suspect the "pure mental process" would suddenly become a patentable machine.
Then perhaps they'd rather be tagged "patient troll"
..or make it not true. I'm going to go hang my head in the collective shame we should all be felling right now.
This is how all discoveries are made and patented in medical science. At first, the idea that a specific metabolite present in the blood is not obvious for many reasons:
... with ever higher fidelity tests and the acceleration of experimental result acquisition and analysis, with the more knowledge we acquire, does a patent suddenly become defunct?
a) how will the substance be metabolized by the body, ie what actually are the metabolites, b) perhaps the liver degrades it to quickly to be detected, c) perhaps it is excreted too quickly to show up anywhere in the system. d) does a specific organ soak up all of the metabolite? e) and etc.
At first, these are all valid questions with non-obvious answers. But as medical science progresses it becomes extremely obvious how works the process governing the patented information, it gets added to text books, professors lecture on it, fad homeopathic remedies regarding it crop up, and it enters into public knowledge.
This is the real question that this patent case brings up
The answer is no, of course not. The patent holder spent their R&D learning how to take advantage of what was at that time a non-obvious thing, and patented it so exactly this would not happen: someone else later finds the same thing and utilizes it. What's the point of a patent if it's no good simply because someone else figures out how to do the same thing independently? That is exactly what a patent protects. Particular cases like this make the patent process sound silly, but this is exactly why patents exist.
So there's an exception in patent law that protects doctors from infringing patents, unless they infringe a patent. Good god.
Assuming that patent pertains to either a noun (composition of matter) or a verb (a process), yes. This still leaves room to violate all those adjective and preposition based patents. Like putting medicine inside of patients and the subjective classification of odors.
Judging by the responses here, I seriously doubt anyone actually understands the service Prometheus provides to people. As a person who has benefited from two of their tests in diagnosing an illness, I can personally state their application of the patents seems fairly valid to me. They developed diagnostic tests and markers for disease and drug metabolism as well as the tests to go along with them. Their blood test for diagnosing Crohns disease was one of the first indicators that this was the disease afflicting me, how should their research into the biomarkers in my blood not be protected? Furthermore, when prescribed 6-MP, there is a test they offer to tell you what dose of 6-MP is safe for you to take, once again based on biomarkers in the blood, not actually based on the drug metabolites in your system. This test tells you what level of metabolism you can expect of the drug, and subsequently what dose of the drug is necessary to be within the safe therapeutic window of the drug.
In my eyes, at least in these two cases, their tests are both original and the result of their own funded research. Why should these not be patentable? Without their investment and research, the tests simply wouldn't exist as there aren't other tests on the market that can do the same thing. If there were other reliable markers for things like crohns disease to be diagnosed through a blood test, then it isn't like Prometheus owns those patents.
So before you all go cry wolf about how evil Prometheus is, remember that their tests do work, they are reasonably priced, and they provide a very clear benefit to the people who have had need of them. Whether they license out the technology for others to use or have all tests performed in house is fairly inconsequential so long as the test is readily available.
I can't speak to their other patents they might have, but if they are anything like the two I have experience with, then it might be beneficial for people to research what these tests do, their rough costs, and the company itself before forming an opinion on the matter. I might not know the legal standing for these kinds of patents, but I can tell you this...there is a very clear benefit provided from these specific tests and these specific tests WERE NOT public knowledge in any way, shape, or form before their discovery, meaning at the very least the statistical analysis used from a number of biomarkers in the blood makes for what I would call compelling intellectual property.
Because revisions to law often occur by inserting clauses into existing statute.
Especially true for potential political hot-topics.
This is why the laws are so convoluted... most legislation doesn't replace old law, it modifies it. It helps obfuscate the law... so instead of 'voting to remove the medical practice safe harbor' the legislator can claim they 'voted to support the biotechnology industry that employs x people in their district'. That's just one reason we end up with "spaghetti law".
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
35 USC 101 is the key to what can and cannot be patented in the US, and it starts: "Whoever invents or discovers any new and useful..." so, yeah "discoveries" can be patented. If you "discover" a new rock mineral that cures cancer, you are entitled to a patent on the mineral itself (given you can prove it's "usefulness", i.e. actually curing cancer).
That reminds me of something a Spaniard once said, "You keep using that word. I do not think it means what you think it means."
Discovering the rock would not entitle you to a patent, using the rock to cure cancer is also not likely to qualify. Conveniently you chopped off that sentence right before a set of significant qualifiers. It's sort of like defining rape and neglecting the portion of that statute that defines what consent is. You'll not the portion of the sentence that says "composition of matter" that doesn't mean a rock, that means something that you've put together sort of like a chemical patent. Or more specifically because one did not create the rock, one would not be eligible to obtain a patent for it.
You might be able to sneak it through as a process patent, but not for discovering the rock itself.
Every time that word comes up it is in some insane context of someone trying to get rich off the backs of other people. Would someone tell me why we can't just let everyone copy off everyone else and whoever has the best implementation (and marketing I suppose) gain the profits and go on..dam..
.. but.. globo-megacorp will steal all the ideas..
So I create the greatest doodad on the face of the earth that no one else ever thought of.. put it together in a crappy implementation, poorly market it (which is more than most patent trolls do) and my version dies a sad lonely death.. then someone else COPIES with my idea, implements it well, markets it well and makes a zillion dollars.. I get my beatdown for being stupid, the people who do it better get the money and the general public enjoys a better product.. besides the me me me gimme money me me of this. where is the freakin problem?!?!?
But
Yes.. if globo-megacorp can do it better, then maybe that's the way it should be.. or maybe, just maybe.. little guy could figure out how to do it better than globo-corp.. hmm?
Think of how much money in every purchase we spend is because of the patent stack of BB's on every piece not to mention the litigation associated with it.
Now think about the amount of innovation that would be achieved if everyone had the resources of everyone else to build from.
The whole patent thing just pisses me off..
Wait, so if I'm understanding this correctly these patents are specifically on the concept of a drug's levels in a patient's bloodstream relating to... something?
That's absurd, you may as well try to patent the observation that the liquid level in a glass of water is useful in determining when it is about to overflow and then charging people to turn their faucets off.
A bullet may have your name on it but splash damage is addressed "To whom it may concern."
While I usually cringe when thinking of responding to patent related topics here, the fact that this got modded up to "4, Informative" made me cringe more.. 35 USC 101 is the key to what can and cannot be patented in the US, and it starts: "Whoever invents or discovers any new and useful..." so, yeah "discoveries" can be patented. If you "discover" a new rock mineral that cures cancer, you are entitled to a patent on the mineral itself (given you can prove it's "usefulness", i.e. actually curing cancer).
You should relax and cringe a bit less, because you're wrong. Check what "discover" means for patenting in the US. Discovery of a new material - which did not occur readily in nature - might qualify, and would presumably be the end result of an inventive process (lab experiments). If you discover a material by tripping up over it, it's not patentable. In fact, it's not new either, is it?
A US patent requires: novelty, usefulness, non-obviousness, and an inventive step. If the subject of a patent application is missing even one of these attributes, it's rejected as being unpatentable under 35USC.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
Seems to me that the patent office screwed up, and granted a patent that they shouldn't have.
Assuming they did, what punishment will the patent office receive for having acted incorrectly?
> Then another clever person takes your idea and uses it to make a better/faster/cheaper test, that is how patents spur the progress of science and the useful arts.
They Mayo clinic already has their own version of this test, which they invented. They're being sued anyhow. It's in the article proper, but I couldn't really include everything in the summary given how much information there is in there. It was long enough as is.
- I Don't Believe in Imaginary Property
Those few medical purposes in practice: saving the life of a congressman.
This case is about 35 U.S.C. Section 101, patentable subject matter. It is not about inventive step, obviousness, written description. etc. http://thepriorart.typepad.com/files/order.prometheus.pdf (the opinion of the trial court) "After careful consideration of the pleadings and relevant exhibits presented by the parties, the oral argument presented at the hearing, and for the reasons set forth below, this Court GRANTS Defendantsâ(TM) motion for summary judgment of patent invalidity thereby invalidating the patents-in-suit as violative of 35 U.S.C. Â 101." So, 35 U.S.C. Section 101 reads: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." This has usually been interpreted as you can't patent gravity, but you can patent a pile driver. Please note, even a trivial expression of gravity is patentable subject matter. You still have to overcome novelty and obviousness. But you get in the door. The key is whether the patented thing is made by man or not. You can patent a living organism if you made it. That is Diamond v Chakrabarty. However, if you engage in some trivial activity, such as cross-breeding plants but not changing the DNA, then that is obvious. In re Pod-ners (http://www.cafc.uscourts.gov/opinions/08-1492.pdf)
U.S. patent law (35 U.S.C.) does not require, per se, "Inventive Step." "Inventive Step" (a requirement in Europe, for example) is roughly equivalent to the U.S. standard of nonobviousness.
hi!
"Doctors fight patient ..." ?
BTW, I agree with those who point out that Prometheus ltd can patent a specific process for testing something, which it invented, but NOT the concept of testing for something.
But, no worries, soon all medical practitioners and suppliers will be civil servants, with a GS scale rating, and you will be tested for your actuarial likelihood of tax payments in the future versus the cost of your treatment, and of course, as with auto dealerships, how much you gave to the Party.
No it isn't. USPTO is a bureaucracy filled with bribable human critters.
Somebody should patent a biped mammal where higher cortical functions (eg ethics, commons sense, altruism) have been replaced with a simple rule set based on principles of greed. ....
Voila - commercial lawyers are patented, and whenever such creatures appear wreaking havock on humanity, we can sue. Oh, wait,
Actually, the mineral as specified in your example is a natural substance - "rock mineral". While modern and moronic patent examiners might indeed grant a patent on the mineral they should not have done so. The treatment in your example is novel and an invention and therefore should be patentable. Patenting the mineral itself forecloses on a fact of nature and as such would preempt any investigation of other properties of the mineral by anyone not holding the patent until the patent expired, regardless of how those properties were applied. Suppose for instance that lurking in the catalytic properties of the mineral was a trait that would - say - convert copper to a room-temperature superconductor - no such thing, but just suppose. That use of the mineral could in no way be construed as an infringement on your medical method for treating cancer using the mineral. Your persistence in defending a patent of a naturally occurring mineral would have delayed the advancement of science in general, physics in particular, and technology as well, merely because you are "protecting" your "discovery." In fact given the results of the University of Mississippi's attempt to patent tumeric, it seems possible that even your method of treatment might not be patentable if any prior art could be demonstrated.
------ The only greater hazard to your liberty than n politicians is n+1 politicians.
> If you invent a test for a certain metabolite and I make another test for the same thing that works in another way, how have I infringed?
Well, Prometheus Labs seems to think that the Mayo Clinic has infringed, even though the Mayo clinic came up with their own test for the same drug metabolites.
That's why I wrote in the summary that they're trying to patent the knowledge itself, even though the actual arguments in court are over the fine points of patent law. They're arguing over whether or not you can have a patent on a procedure when there's no "post solution activity." I.E. the patent covers the activity of diagnosing how much of the drug the patient needs.
Now, I'm sure there are decent patent lawyers who will opine that this state of affairs is absurd and that this shouldn't be patentable in the first place, but at least one court has agreed with Prometheus Labs, which is what makes this more newsworthy than just another absurd patent application that hasn't even been granted.
- I Don't Believe in Imaginary Property
You have the word wrong. It was "recite" not "cite." And I was quoting one of the legal briefs (which was, I believe, arguing that there's no "inventive step" if I remember the context correctly). Basically, it means that they're patenting a discovery--something they observed in the natural world and there's no invention to speak of. It's sort of like patenting "things fall when I drop them" and trying to tell people not to drop things without paying me.
You might think I'm making a straw man from this, but that's exactly the sort of thing they're patenting. They're patenting a well-known process of figuring out how much of a drug has been absorbed by a patient's body by looking at the levels of metabolites of that drug (metabolites are what's left over when your body has used up a drug). The main difference is that they apply it to a specific drug.
Note also that the Mayo Clinic has their own version of the test, which uses a different process (but which looks at the same metabolites). They're still getting sued for infringement precisely because they look for those metabolites.
- I Don't Believe in Imaginary Property
God is patented. Upon a miracle, you have to fork over a fee. Prayer communication bytes are also taxed.
Table-ized A.I.
.. is the lumping together of patents, copyright, and trademarks into this wrong-headed term 'Intellectual property', it encourages people to think of anything they know as something that can get exclusive use of and prevent anyone else from copying, using, knowing, or even trying to improve on. Patents always end up as a fight between deep-pocketed companies, and completely lock out the public, when they were *supposed* to *promote* the public good.
You cannot (or at least, you shouldn't be able to) patent 'knowledge'. You can patent *an invention* (and it should be an actual physical invention, for which you can demonstrate a working prototype, at the very least.)
I can only imagine what would have happened had this mindset been prevalent when fire was discovered; or electricity; or any of untold numbers of basic factual scientific concepts that humanity has learned of over many thousands of years.
This is not so clear. The part that follows what you quoted changes things. Here's the whole sentence:
The verb discover is here used in a sense very similar to invent since the discoveries covered are of processes, machines, and compounds. Discovery of a scientific fact arguably is not included.
long rambling reply. I work for an american business. I have just taken their ethics training course. I have just been treated like a piece of shit by the company. I realty think that american civilization deserves to be replaced by something else. news items like this tend to confirm my personal evaluation.
Facts are history now plebs have politics for religion on social media.