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.

Comments

O to CO2 conversion

[ArcherB]

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.

Re:O to CO2 conversion

[adonoman]

No, but maybe you could patent reading the percentage of CO2 in the air exhaled by the body as an indicator that the person is indeed using the O2 being breathed in.

Re:O to CO2 conversion

[AigariusDebian]

Patenting knowledge is absurd. Patents are there to allow patenting of novel and non-obvious *devices* that can not be easily reverse-engineered. The society has agreed to grant a limited monopoly on creation of a novel and non-obvious device, if its inventor describes how it is made and how it works to enough detail that anyone skilled in the arts could replicate it. That is a patent.

If a device is simple enough that it can be reverse-engineered once it hits the market, there is no insetive for the society to ever grant a patent on such device.

Nowadays we can reverse-engineer almost anything, thus patents are obsolete, it just remains to change the law to reflect this simple fact of life.

Re:O to CO2 conversion

[Red Flayer]

You've got it backwards. Patents exist *precisely* to protect inventions that can be easily reverse-engineered.

If an invention cannot easily be reverse-engineered, then it does not need the protection of a patent. QED.

"Novel and non-obvious" does not mean "difficult to reverse-engineer".

The cotton gin is a great example. Easily reverse-engineered, but protected by patent nonetheless.

We know it was easily reverse-engineered because several people did just that. Never mind all the claims that Whitney's "invention" was simply the result of reverse-engineering gins in Europe/England.

Test for Money or No Test at All?

[eldavojohn]

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?

Re:Test for Money or No Test at All?

[afidel]

Prometheus can patent their particular test for a given attribute but patenting the process of testing for that attribute is classically a no-no. Basically your unique invention can be patented but not the idea behind it. 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. If they don't like the limitations of patent protection then they can attempt to keep the invention a trade secret.

Re:Test for Money or No Test at All?

[Naturalis Philosopho]

If you take away that revenue from Prometheus, what motive do they or other labs have to continue this kind of research?

I know that you're trolling since you're purposefully misunderstanding arguments to keep this thread going, but you make a very good argument for the socialization of this type of research. If a company cannot make a profit without patenting an idea rather than a unique technology, but society finds these ideas useful, then it's time for the NIH to be funded publicly to do this research. Of course, both arguments are predicated on the misconception you're promulgating that this wasn't already a known methodology for testing all sorts of crap in our bodies.

Re:Test for Money or No Test at All?

[Znork]

will surely skyrocket

Most likely not beyond what it would have either way. Research is a cost with very unpredictable ROI, and total funds available to pay for medical payments don't necessarily increase much just because there are more patents (monopoly economics; you're always charging what the market can bear so there's never 'more' money available unless the consumers become wealthier). Instead they cannibalize each other, which means the pharmaceutical industry is better off not researching more than absolutely necessary (the classic 'twist a molecule one step to the left' and apply for a new patent) and fighting it out with marketing. Which is why you see more patent money funding marketing than funds research.

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.

Ah, but you don't want to test yourself for _that_ disease. You want to get tested for _this_ disease. Your tanned doctor certainly recommends getting tested for _this_ disease, and he's been on a week long ski, er, 'conference' trip to the alps, so he certainly knows the kickbacks, er, symptoms... and no questions of why he's got lipstick smudges in the same tone that the pharmarep who just left wore.

In the end you may still not get that test you want; the classic argument for patents has very little evidence to indicate that it actually works as intended. There is, however, a lot of evidence that monopolies become very ineffective, and you don't need to go further than a pharmacorps investor relations material to note that most money derived from those patents goes to completely different things.

The pharmas like to claim it's expensive to do medical research. You don't need to look much to note that most everything monopolies do eventually becomes 'very expensive', so it's an open question whether patents needed because R&D is expensive or R&D is expensive because there are patents.

I'd be interested in hearing Prometheus Labs' pricing scheme.

Revenue, when you have a monopoly, is always maximized at what the market can bear. You jack up the prices until you lose money from the lost customers than you gain from the increased per customer profit. It's not as if someone could undercut you...

What motive do they have ... without a monetary incentive

What motive does anyone have in a free market economy? Either you improve your products or your competition will wipe the floor with you. Many industries live with exactly those conditions.

If being handed free money by the state (or monopoly rights, which isn't much different in anything but name) was a prerequisite for anyone having an incentive to do anything we might as well skip the pretence of a free market.

Re:Test for Money or No Test at All?

[Daniel Dvorkin]

I work in academia, of course. My salary comes from NIH grants. And that, my friend, is how the vast bulk of basic science research gets done.

You want applications of scientific knowledge? Industry is great at that. And when corporate researchers come up with a novel, useful, and non-obvious way to apply knowledge in a specific way to a specific problem, patents are a great way to keep such work going. Getting the knowledge in the first place ... not so much.

Look, I want people to make money off my work. If one of my papers ever gets mentioned in a good patent on a diagnostic or treatment that actually helps people, I'll be overjoyed. That's why I do what I do. Do I want a decent paycheck? Of course I do. But if the paycheck were all I cared about, believe me, there are easier ways to make a living. I walked away from a steady, secure, well-paid, and generally quite enjoyable DBA job to go back to grad school, and although I regret the loss of income, I don't regret the decision itself at all.

Science is a public good. Treating the fruits of science as property pretty much guarantees that science, as we mean the word in modern usage, does not happen. If we want the benefits of our ever-increasing knowledge of the natural world, we have to make that knowledge as widely usable as possible.

IP...

[oldhack]

Such IPs seem indicative of the decay of our civilization. This wasn't the knowledge economy I was expecting.

Re:IP...

[Anonymous Coward]

This wasn't the knowledge economy I was expecting.

That's because the so-called "knowledge economy" was complete bullshit from the get-go.

When the manufacturing base was destroyed in the late '60s and early '70s, a phony concept had to be invented by the government's court economists to keep the people from rebelling.

Patent vs. Natural Phenomena

[ground.zero.612]

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.

Re:Patent vs. Natural Phenomena

[bughunter]

A clear indicator that our medical system needs reform is that corporations can engage in profit-maximizing behavior like this by treating sick people as a "resource" or "market."

Doctors, labs, chemists, and even insurers are entitled to a fair profit for their services provided. However, they are not entitled to behave like wall street tycoons and start "innovating" in ways to screw us, and each other.

Or at least they shouldn't be. The fact that they are is the root of the problem with health care in the US right now, but no one in DC wants to talk about it. Because everyone doing the talking is on the take from a healthcare corporation somewhere.

Re:What's next?

[Anonymous Coward]

The question to ask is "does allowing a class of patents benefit society". If the best reasoning available says not, then it is a shame theyy are allowed to exist.

Knowledge, or "Facts" should not be patentable.

[Puls4r]

>>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.

Re:Chicken Little

[Red Flayer]

I can only assume that Congress did not intend for the "biotechnology patent" to subsume the entire safe harbor!

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.

Re:What's next?

[MightyMartian]

This seems to be like claiming that you can't use a generic circuit tester on a patented circuit board because somehow the fact that the circuit board's electrical footprint is unique means picking up the electron flow is patent protected.

It's moronic and ludicrous. What's next, companies patenting molecular spectroscopic signatures? "Oh, I'm sorry, you can't use your mass spectrometer to detect our patented chemical. You have to send the sample to us."

Re:Chicken Little

[Hatta]

So there's an exception in patent law that protects doctors from infringing patents, unless they infringe a patent. Good god.

Re:What's next?

[fuzzyfuzzyfungus]

I'm imagining a "DMCA II" where using any analytical equipment on a patented compound is treated as attempted illicit duplication...

Re:I know I may be a bit of a leftist on this but

[clickety6]

I originally read your comment "But I don't think that patients have any place in health care, ever." and thought it sounded like a pretty apt summation of health care in the US ;-)

Re:Chicken Little

[Daniel Dvorkin]

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.

Re:patent: new, useful, non-obvious, inventive ste

[drunkle j]

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.

Re:This is the nature of medical science

[h4rr4r]

The whole idea of patents is to force people to not use your method. If you invent a hammer for staples and I invent yet another hammer for staples that is fine.

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?

To allow patenting the observation that this metabolite can indicate something about your health is absurd. Will scales be banned when I patent observing that obesity is an indicter for a heart disease risk?

Re:This is the nature of medical science

[Shamenaught]

The whole idea of patents is to force people to not use your method.

I'd have said the whole point was to get them to pay you royalties for using your R&D. Sure, some may choose not to release patents. At that point, I'd have said the point switches to "Allowing you to sue someone's ass off".

In either case, patents are all about getting money back 'cos you spent money on something. It should be proportionate, but that last factor is something many lawyers (RIAA, etc) like to exaggerate.