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Supreme Court Legitimizing Medical Patents?
RobinEggs writes "A case before the U.S. Supreme Court Wednesday addressed the legality of medical patents. From the article: 'The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient's blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical "indicate a need" to raise or lower the drug dosage. The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn't act on the patent's recommendations.'"
Looks like it's time for that revolution.
Damn, and here I was hoping to never have to befriend an extremist militia.
Moving to Canada or Australia sounds good, but, like they say, "the grass is always greener".
"Helping to keep you two steps ahead of the Thought Police!"
Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you!
No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.
Un-fucking believable.
All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.
Chas - The one, the only.
THANK GOD!!!
Just because they heard the case doesn't mean "Supreme Court Legitimizing Medical Patents".
That's a troll headline.
This is as basic as it gets. Can companies patent the use of facts? Let's see if they can get this right. If they do, at least we know there's an upper limit to their ignorance. If they can't , then it's the end of innovation in the US and the beginning of a stampede of smart, motivated people who want to do Good Things out of the US and into the EU or elsewhere. It's just that simple. Either we're free to innovate in this country, or we leave our country in favor of a land that offers more freedom and opportunity. Just like our forefathers did.
All I can hope is that medical establishments EVERYWHERE (including insurance companies) tell these people to fuck the hell off and stonewall them into bankruptcy while blacklisting every product and service they use to hasten the process.
My hope is with you, buddy. Except I fear that whenever money is involved, ethics, humanitarianism and other socially awesome things go out the window.
Brazil had this idea:
http://news.bbc.co.uk/1/hi/health/4059147.stm
blindly antisocialist = antisocial
Sorry Mr. Patient. While I know exactly what's wrong with you, the Medi-Jackass Inc. will sue me into oblivion if I prescribe the proper treatment to you! No, I can't tell you either. They'd sue me into oblivion TWICE, then go after you too.
Un-fucking believable.
35 USC 287(c)(1): With respect to a medical practitioner's performance of a medical activity that constitutes an infringement under section 271(a) or (b) of this title, the provisions of sections 281, 283, 284, and 285 of this title shall not apply against the medical practitioner or against a related health care entity with respect to such medical activity.
There are no damages for infringement by a medical practitioner of a medical activity. No one's going to sue doctors. Stop the FUD.
There are no damages for infringement by a medical practitioner of a medical activity.
That doesn't mean the doctor won't have a pay a lawyer to convince a judge that 35 USC 287(c)(1) applies.
No, this is about if a generic version of the drug can be sold as long as the label doesn't instruct the physician about the patented use. The holder of the patent wants to ban generics even though the patent on the drug itself has expired.
I read the transcript of the arguments, and it wasn't really clear to me what way they were leaning. Sotomayor seemed mostly in favor of the patentee, while Breyer especially was critical of the patentee. But these are oral arguments, and justices can take devil's advocate positions during these in order to tease out certain details of the case. Figuring out how the court will swing based on the oral arguments is like reading tea leaves, especially when it comes to patent law.
As for the correctness of the headline: This case is in the Supreme Court because an early summary judgment motion in the district court was granted, ruling that the patent is invalid. The case was appealed to the Federal Circuit, which reversed the ruling, and then Mayo appealed to the Supreme Court.
This case only focuses on the question of patentable subject matter under 35 USC 101, i.e., what kinds of claims should be patentable. In particular, the question here is whether the claims are directed to an application of a law of nature (the metabolism of a certain drug administered to a patient) or to the law of nature itself. Laws of nature are not patentable in and of themselves, but applications of a law of nature can be, as long as the entire law of nature is not "pre-empted" by the claim. In other words, matter-energy equivalence, E = mc^2, is a law of nature. Particular applications of that principle can be patentable, but if the claims are written such that every conceivable application of the principle is covered by the patent, then the principle is pre-empted by the claim (i.e., they might as well have claimed that entire law of nature, because the claims effectively cover it entirely).
Prometheus, and the federal government, both argue that the arguments that Mayo is making are better addressed when considering the claims against the prior art (i.e., under 35 USC 102 and 103). (This is in part because Mayo is doing a hamfisted job of arguing their case, probably because they don't want to sabotage some of their own medical treatment patents.) The issue is that prior art considerations require a time-consuming process called a Markman hearing, where the court decides how to construe the various terms recited in the claims, and usually thereafter, a jury decides whether the prior art covers the claims, which makes the process extremely uncertain. It's Mayo's hope that patents like this can be killed early on in the process by a judge, rather than putting all their money on double-zero and giving it a spin with a jury.
TLDR version: Nobody really knows what SCOTUS was thinking during oral arguments. This isn't the end of the road for this case, even if Mayo loses, because prior art still has to be considered.
or 3. The lawyers, judges, and Congress will realize that the entire government will grind to a halt if that strategy is allowed, so they will reject the strategy, completely failing to realize that this is also a problem in other areas.
Exactly. A similar example of this is the drug Propecia - the hair loss drug. Propecia is a 1mg dosage of Finasteride that goes for over $2 a pill and is patented so there's no generic option. The thing is, Finasteride isn't new, it has been around since the 60's in a 4mg dosage to treat prostate enlargement and hormonal issues, it isn't under patent anymore and costs about $.02 a pill. Merck came along a few years ago and claimed to invent the same damn drug for a different purpose and got an 8 year patent on it allowing them to jack the price for no good reason.