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Doctors Fight Patent On Medical Knowledge

kdawson posted about 5 years ago | from the no-not-patent-medicine dept.

Patents 205

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.

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205 comments

A Great Joke (-1, Troll)

Anonymous Coward | about 5 years ago | (#28772793)

How was copper wiring invented? Two Jews fighting over a penny!

What's next? (4, Funny)

Tubal-Cain (1289912) | about 5 years ago | (#28772807)

Patenting chicken soup and lots of liquids for treating colds?

Re:What's next? (1, Interesting)

Anonymous Coward | about 5 years ago | (#28772877)

Pretty close...

Chicken soup mix composition and a process for preparing the same [uspto.gov]


Abstract

Preparation of dehydrated chicken soup mix involves pressure cooking of chicken meat along with ginger, garlic and onion, separation of liquid extract from cooked meat, separation of meat from the bone, blending of cooked meat and extract with starch and spices into a mix, addition of liquid extract to the mix to make it a slurry, drying of slurry into powder form, and mixing of this powder with milk powder, salt, monosodium glutamate (MSG), ascorbic acid, pepper powder and sugar and packed. The product is sensorily highly acceptable and is microbiologically safe.

Re:What's next? (5, Funny)

psicop (229507) | about 5 years ago | (#28772881)

A patent on the observation of cessation electrical activity in the heart, resulting in a pulse as a precursor to an eventual absence of a pulse.

In other words...He's dead, Jim.

Re:What's next? (3, Funny)

Mordok-DestroyerOfWo (1000167) | about 5 years ago | (#28773509)

Dammit psicop, I'm a doctor not a patent lawyer!

Re:What's next? (1)

fuzzyfuzzyfungus (1223518) | about 5 years ago | (#28772887)

Ironically, while that would either be shot down by prior art(if filed today) or expired(if patented on invention), it would actually be a much more suitable patent than the one in question.

If they wanted to patent a particular means of testing for the metabolite, that'd be fine(assuming it was non-obvious, and they invented it, and so forth); but the notion of metabolite testing is, at best, something that would once have been patentable and is now common obvious knowledge.

Re:What's next? (4, Insightful)

MightyMartian (840721) | about 5 years ago | (#28773365)

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:What's next? (4, Insightful)

fuzzyfuzzyfungus (1223518) | about 5 years ago | (#28773451)

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

Re:What's next? (1)

FlyingBishop (1293238) | about 5 years ago | (#28772921)

No, patenting "A method for maximizing fertility by restricting copulation to times during the female's menstrual cycle when conception seems most probable."

Re:What's next? (1)

lorenlal (164133) | about 5 years ago | (#28773357)

What is this copulation? Is that the average density of law enforcement in a group of people?

Re:What's next? (1)

KahabutDieDrake (1515139) | about 5 years ago | (#28773627)

Never mind the cops, what the hell is a female? I'm almost afraid to ask what menstruation is...

Re:What's next? (1, Insightful)

Anonymous Coward | about 5 years ago | (#28773121)

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.

Re:What's next? (0)

Anonymous Coward | about 5 years ago | (#28773147)

Almost.

The middle-class white man's way to cure sickness is by utilizing Campbell's chicken noodle soup, DayQuil, and Sprite.

It is the way of my people.

O to CO2 conversion (2, Insightful)

ArcherB (796902) | about 5 years ago | (#28772829)

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.

patent: new, useful, non-obvious, inventive step (4, Informative)

AliasMarlowe (1042386) | about 5 years ago | (#28773077)

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.

Re:patent: new, useful, non-obvious, inventive ste (1)

ZachPruckowski (918562) | about 5 years ago | (#28773585)

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).

Re:patent: new, useful, non-obvious, inventive ste (2, Insightful)

drunkle j (824263) | about 5 years ago | (#28773695)

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:O to CO2 conversion (4, Informative)

mea37 (1201159) | about 5 years ago | (#28773107)

"Does this mean I can patent the method the body uses to convert O2 to C02 and then sue everyone?"

No, and I don't see the connection. The patent doesn't cover a natural process of the body; it covers the procedure of looking at the results of that natural process.

It doesn't look to my (admittedly untrained) eyes like a valid patent, but that's because it appears obvious. It essentially seems to say, "Want to know if there's too much or too little of a drug in the patient's system? Then check!" My attitude would vary if there's some sophisticated, non-obvious mechanism behind taking the reading of how much drug is in the system, and they invented that method, and that method is spelled out in the patent...

That the patent "recites a natural phenomenon" is a non-issue to me. Every patent can be boiled down to observations about nature. Every patent is an observation about a useful application of natural laws of physics, chemistry, etc.

Re:O to CO2 conversion (3, Insightful)

AigariusDebian (721386) | about 5 years ago | (#28773277)

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 (5, Insightful)

Red Flayer (890720) | about 5 years ago | (#28773433)

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.

Re:O to CO2 conversion (1)

Miseph (979059) | about 5 years ago | (#28773475)

"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."

Only if you don't count "rewarding ingenuity so that it might be repeated" as an incentive. There are all sorts of non-obvious devices out there which are trivial to reverse engineer, and it is absolutely of benefit to society that the people who invented them be rewarded for their effort. If the best and most reasonable benefit we can give them is a limited-time monopoly on making and selling the device, then so be it.

That said, there needs to be a whole lot more oversight and investigation put into our patent system because there are far too many flagrant abuses going both ways.

Re:O to CO2 conversion (1)

Vesvvi (1501135) | about 5 years ago | (#28773523)

"The patent doesn't cover a natural process of the body; it covers the procedure of looking at the results of that natural process."

No, they patented the very idea of looking at those chemicals, as you recognized later in your statements. That's exactly why there was no good reason to issue these patents.

Re:O to CO2 conversion (1)

mea37 (1201159) | about 5 years ago | (#28773605)

Since that is exactly what I said, it is unclear to me what the word 'No' is doing at the front of your sentence.

Re:O to CO2 conversion (2, Insightful)

adonoman (624929) | about 5 years ago | (#28773151)

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.

Test for Money or No Test at All? (4, Insightful)

eldavojohn (898314) | about 5 years ago | (#28772835)

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? (5, Informative)

bugnuts (94678) | about 5 years ago | (#28772975)

Although I appreciate the distaste of making money off sick people, I don't think that applies. Promethius should be tied to a rock for a giant eagle to eat their livers.

They merely patented something that a "common knowledge" thing in drugs. It's how urine drug screening has worked for 20 years, it's how tons of drug effectiveness tests work (mostly drug screenings). It's a false monopoly, troll or not.

If they invented some sort of new test for the metabolites... like a special litmus stick which would tell you the levels of metabolites, that would be completely different.

Re:Test for Money or No Test at All? (1, Troll)

eldavojohn (898314) | about 5 years ago | (#28773191)

They merely patented something that a "common knowledge" thing in drugs.

I didn't realize it was "common knowledge." Now all you need to do is link to prior art in an e-mail to the Mayo Clinic's lawyers and everything will be resolved.

It's how urine drug screening has worked for 20 years, it's how tons of drug effectiveness tests work (mostly drug screenings).

I somehow think this is more complicated than that but I guess that's what I get from reading the article:

At issue in Prometheus are tests that measure levels of metabolites produced by the body after a person takes thiopurine drugs, which are typically used to treat Crohn's disease and other inflammatory bowel conditions. Knowing those levels helps doctors assess how well a patient is responding to thiopurine treatment. The drug dosage may be modified depending on whether the metabolite levels are too high or low.

Prometheus claims it alone is legally allowed to perform the tests that measure those metabolites. The company is the exclusive licensee of two patents--6,355,623 and 6,680,302--that it says cover the testing.

So urine screening has worked by testing metabolite levels as a patient responds to thiopurine treatment? See, it might make sense to us now but nobody knew it before the patent. If you can show that it was commonplace to check metabolite levels during thiopurine treatment and adjust dosage based on that, then these patents should be revoked. If not, the patents are unfortunately valid. Now, if this knowledge was gained from the patents then the patents are a good thing because they result in more accurate drug dosages and better treatment.

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

Re:Test for Money or No Test at All? (4, Insightful)

Naturalis Philosopho (1160697) | about 5 years ago | (#28773429)

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.

Very good argument for socializing this research (3, Interesting)

spun (1352) | about 5 years ago | (#28773561)

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.

Re:Test for Money or No Test at All? (2, Informative)

Grond (15515) | about 5 years ago | (#28773631)

The idea of testing metabolite levels is not what the patents claim, though. The patents claim testing for specific levels of a specific metabolite produced by the administration of specific drugs given for a narrow class of conditions.

The immunosuppressant drugs in question (6-mercaptopurine, azathioprine, 6-thioguanine, and 6-methylmercaptopurine riboside) require very careful titration in order to be effective. Too little and they are not therapeutic, too much and they overwhelm the immune system. Thus, too little and the patient could have a potentially fatal disease flare up, too much and they could contract a fatal infection. Because of the way they work, a changed serum metabolite level takes week or months to have an effect on the disease or the immune system. Thus, it is vital that the doctor and patient be able to zero in on the correct dosage very quickly rather than through trial and error.

Figuring out which metabolite levels corresponded to the optimal dosage took a fair bit of expensive research (for starters, the drugs are not cheap, even as generics). The patent on the test is a valuable incentive for getting that research done. Mayo Clinic, which could have done the research itself, chose not to do so. Instead, it wants to free ride on the work done by Prometheus because it decided a patent infringement lawsuit is cheaper than paying for the test.

Re:Test for Money or No Test at All? (4, Insightful)

afidel (530433) | about 5 years ago | (#28773027)

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? (3, Interesting)

gzearfoss (829360) | about 5 years ago | (#28773179)

That's the way it's supposed to work, but how it's more likely to work is:
1) Another clever person takes your idea, and uses it to make a better/faster/cheaper test
2) You hire lawyers to take the clever person to court, and tie up their product in so much litigation it looks like the world's largest ball of twine.
3) You either end up buying out the clever person, litigate them into bankruptcy, or delay them until you've extended the patent and your extended patent expires.
4) You then make a minor change to the process, repatent the idea, and repeat the process from step one.

Re:Test for Money or No Test at All? (1)

FlyingBishop (1293238) | about 5 years ago | (#28773065)

What they're doing is a lot like writing a 100 line proprietary plugin for Firefox, and then suing anyone who writes a plugin that duplicates your functionality.

Data like this has no real value in isolation. There's no gene X that causes a disease. There's usually a set of 3 or 4 genes, and lets not even start on how epigenetics comes into play. Restricting the ability to test to one organization hurts everyone. The only way to do this sort of research is to have as large a database as possible containing as much genetic and demographic information as possible. Restricting the testing to those who can pay drastically reduces the quality of the database, and makes making any real sense of it impossible.

Only in aggregate do the numbers even begin to add up. Patents like this completely stunt the research they intend to support.

Also, on a pedantic note, I think you meant "pore over this data." To pore, to pour, and a pore are 3 very different things. Wtf English, I know.

Re:Test for Money or No Test at All? (3, Interesting)

Daniel Dvorkin (106857) | about 5 years ago | (#28773293)

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.

Speaking as someone who does this kind of research for a living, I can tell you that patentability is neither necessary nor desirable to spur research in the field.

Re:Test for Money or No Test at All? (3, Interesting)

eldavojohn (898314) | about 5 years ago | (#28773377)

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.

Speaking as someone who does this kind of research for a living, I can tell you that patentability is neither necessary nor desirable to spur research in the field.

Well maybe you should talk to the venture capital funds and the people who give you researchers money to do research that might result in nothing. Or do you work for free?

We're all quiet about drug patents when a company does something really beneficial for humanity [slashdot.org] and patents it. No one got upset with Cleveland Biomedical Labs for patenting those radiation fixing proteins--you'll notice their investors enjoyed a temporary 30% increase in stock worth that has since diminished. But when it comes to harvesting the money off said patents, they'll be monsters. Do we see this amount of research in other countries that don't honor patents? How are their researchers compensated? They feel good inside?

I'm all for patent reform and believe many medical patents are out of control, I'm just interested in how you see this model working if you are one of the researchers that needs compensation.

Re:Test for Money or No Test at All? (3, Insightful)

Daniel Dvorkin (106857) | about 5 years ago | (#28773615)

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.

Re:Test for Money or No Test at All? (1)

locallyunscene (1000523) | about 5 years ago | (#28773415)

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.

You do realize you're using a fictional book to support your false dichotomy, right?

I don't mean that to sound as sarcastic as it does, but things were invented, written, and performed long before patents and copyright.

Re:Test for Money or No Test at All? (4, Insightful)

Znork (31774) | about 5 years ago | (#28773435)

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? (0)

Anonymous Coward | about 5 years ago | (#28773489)

First, the disclosure, I am a member of the AIPLA. I do not however, support their position in many areas.

That said, if the basis of the Prometheus patent is the statistical analysis, then they should not have a patent. That is mere discovery of an underlying fact. Even if that fact is obscure. The test for subject matter is the machine or transformation test.

In this case, it appears by reading the AIPLA Amicus Brief, that the AIPLA argues that the transformation of the drug into metabolites counts. Note, this transformation is being done by the patients body. Sheesh!

I wasn't in the section putting together the brief, but it is amusing to read, and not quite right, IMHO.

Re:Test for Money or No Test at All? (1)

interkin3tic (1469267) | about 5 years ago | (#28773673)

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.

Yup. They knew what they were getting into. If you want to make something and then charge highway robbery for it and use patent law as a bat against your competition, you should know that medical research is not the easiest place to do that. I AM NOT saying it's right or wrong, just that it is how it is, health is a different research game in many ways, ethics and PR are just two.

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.

That's not the question. From TFA

The Mayo Clinic developed its own thiopurine-related test that measured the same metabolites but relies on different âoewarningâ levels to determine when a change in drug dosage in needed. In June 2004, Mayo announced it would begin using its own test and would also offer that test for sale to others. Prometheus responded by suing Mayo for patent infringement on June 15, 2004.

Prometheus hasn't actually come up with anything but a way to test something natural (at least that's how it sounds to me, a non-doctor.) The innovative part is that they're saying they're the only ones who have a right to look at that natural thing, and you can pay them whatever they want to charge as a monopoly on your own metabolites.

In other words, it's not a question of being able to be tested by paying prometheus or not being tested, it's a question of granting prometheus a monopoly when they've done nothing to deserve it (and thereby paying monopoly prices for the test) versus allowing competition where it should exist (and paying competitive prices.)

Simply put... (0)

Anonymous Coward | about 5 years ago | (#28772849)

Biological processes and should never be patentable. It would seem that something like this should go against the Hippocratic Oath.

Re:Simply put... (0)

Anonymous Coward | about 5 years ago | (#28772895)

Well that oath covers Doctors - who are on the patients side here. I think really we should all tell these patent yokels that we all have patents on our own bodies (you can patent a machine and bodies are simply complex machines driven on chemical processes). Why they think they can patent a chemical process inside our patented bodies is the mystery. They didn't invent the process.

Re:Simply put... (0)

Anonymous Coward | about 5 years ago | (#28773055)

Are they patenting the process, or only "a method and procedure to detect" the results of the process.

Beaten to the punch (3, Funny)

Drakkenmensch (1255800) | about 5 years ago | (#28772857)

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.

Re:Beaten to the punch (2, Funny)

batquux (323697) | about 5 years ago | (#28772897)

Actually, their patent only covers when bulls do it.

Re:Beaten to the punch (1)

mea37 (1201159) | about 5 years ago | (#28773189)

There's a natural process, akin to digestion, by which you become aware of the level of drug metabolites in your blood?

Or you read one litigants soundbyte and didn't do any fact-checking to see what the patent actually covers?

Don't get me wrong, the patent is garbage IMO - but not for the reasons put forth in TFS.

Re:Beaten to the punch (3, Interesting)

Red Flayer (890720) | about 5 years ago | (#28773219)

No, no, that's someone else.

Prometheus is the Titan who was chained to a rock by Zeus so an eagle could eat his liver every day (it grew back every night).

Since the liver filters crap from the blood, clearly Prometheus has the patent on regenerative shit filtering, not on shit production.

As a side note, what's ironic to me is Prometheus has become a symbol of defiance to authority, largely due to Shelley's Prometheus Unbound [wikipedia.org] . (In the original mythology, Prometheus reconciles with Zeus and submits to Zeus's will -- Shelley rewrites the myth so that Prometheus's defiance leads to Zeus's downfall). So now we have a company using the name "Prometheus", but using the full powers of authority to prevent others from using potentially life-saving technology.

Way, way off-topic -- I know. But for this company to use the name "Prometheus" because of its association with knowledge/wisdom (Prometheus brought fire to humans, which is why Zeus punished him), but then contradict the modern association with defiance of authority... well, I find it humorous, anyway.

Re:Beaten to the punch (1)

MartinSchou (1360093) | about 5 years ago | (#28773405)

I always find it comforting when someone's signature is fitting to the subject of their post :)

Patent on anatomical miracle still available (1)

Lead Butthead (321013) | about 5 years ago | (#28773549)

Apparently Prometheus has not yet patented the behavior they're willfully engaging in that is commonly referred to as Ass-Hat.

IP... (4, Insightful)

oldhack (1037484) | about 5 years ago | (#28772861)

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

Re:IP... (0)

Anonymous Coward | about 5 years ago | (#28772959)

Me either, its sad to see that money and power is more important than human lives. In a perfect world, patents wouldnt exist and every bit of knowledge would be public domain. Nobody should be allowed to profit at the expense of others.

Re:IP... (3, Insightful)

Anonymous Coward | about 5 years ago | (#28773119)

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.

Re:IP... (1)

justinlee37 (993373) | about 5 years ago | (#28773345)

I'm not so sure that this is insightful. It sounds like the parent is really getting his tinfoil hat on.

obesity as an indicator (4, Funny)

Anonymous Coward | about 5 years ago | (#28772865)

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!!!

Chicken Little (4, Informative)

Absolut187 (816431) | about 5 years ago | (#28772871)

Everyone loves to freak out about this, but the reality is that there is a safe harbor provision for doctors in the patent statute.

http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_287.htm [uspto.gov]

(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.

Re:Chicken Little (1)

Tubal-Cain (1289912) | about 5 years ago | (#28772901)

So the doctor can't be sued... Can the test manufacturer?

Re:Chicken Little (1)

Absolut187 (816431) | about 5 years ago | (#28772911)

So the doctor can't be sued... Can the test manufacturer?

Yes. The safe harbor does not apply to test manufacturers.

Re:Chicken Little (4, Informative)

Red Flayer (890720) | about 5 years ago | (#28772917)

Please read the rest of that section. Emphasis mine:

(A) the term "medical activity" means the performance of a medical or surgical procedure on a body, but shall not include (i) the use of a patented machine, manufacture, or composition of matter in violation of such patent, (ii) the practice of a patented use of a composition of matter in violation of such patent, or (iii) the practice of a process in violation of a biotechnology patent.

That's a loophole to the medical practice exception that you could drive an ambulance through.

Re:Chicken Little (1)

Absolut187 (816431) | about 5 years ago | (#28773103)

Good point. The phrase "biotechnology patent" seems extremely broad, and it is not defined in the statute. I can only assume that Congress did not intend for the "biotechnology patent" to subsume the entire safe harbor!

Re:Chicken Little (3, Insightful)

Red Flayer (890720) | about 5 years ago | (#28773289)

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:Chicken Little (1)

Absolut187 (816431) | about 5 years ago | (#28773335)

Then why put it in at all?

Courts will typically interpret statutes by assuming that Congress wouldn't waste time/paper by saying:

This rule applies to X situations.
Exception: X situations.

Re:Chicken Little (3, Insightful)

Hatta (162192) | about 5 years ago | (#28773367)

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

Re:Chicken Little (0)

Anonymous Coward | about 5 years ago | (#28773669)

I think the cadillac of the ambulance chaser would make it through that loophole side by side with the ambulance.

Re:Chicken Little (1)

CodeShark (17400) | about 5 years ago | (#28773101)

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 ?

Re:Chicken Little (2, Informative)

Absolut187 (816431) | about 5 years ago | (#28773197)

The district court's order granting summary judgment of invalidity doesn't discuss the safe harbor provision. So the answer to your question may be "because the defendant didn't raise it". The defendant has (so far successfully) argued that the patents are invalid under 35 USC 101 - lack of patent-eligible subject matter.

This case is headed to the Court of Appeals for the Federal Circuit (CAFC).

Note that the Bilski case, recently decided by the CAFC, has been accepted by the US Supreme Court. That should be a *very* important decision for patent law. In Bilski the CAFC held that the applicant's business method patent for "hedging risk" was not patent-eligible subject matter.

Re:Chicken Little (5, Interesting)

Anonymous Coward | about 5 years ago | (#28773225)

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.

Re:Chicken Little (3, Insightful)

Daniel Dvorkin (106857) | about 5 years ago | (#28773455)

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.

Legal Advice on the Internet (1)

ColdWetDog (752185) | about 5 years ago | (#28773531)

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?

[ 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)

Re:Chicken Little (1)

Absolut187 (816431) | about 5 years ago | (#28773685)

Both patents were held invalid by the district court.

Keep an eye on the appeal, but I wouldn't worry too much.

Re:Chicken Little (1)

Yvanhoe (564877) | about 5 years ago | (#28773271)

But that does not protect medical lab technicians who use or engineers who design testing systems for biological samples.

Re:Chicken Little (1)

Pandrake (1513617) | about 5 years ago | (#28773391)

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.

Re:Chicken Little (1)

Absolut187 (816431) | about 5 years ago | (#28773647)

Don't worry too much about wording chosen by a non-lawyer reporter.

The court decisions make it very clear that you can't patent mental processes.

Patent vs. Natural Phenomena (2, Insightful)

ground.zero.612 (1563557) | about 5 years ago | (#28772925)

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 (1, Insightful)

bughunter (10093) | about 5 years ago | (#28773165)

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.

I know I may be a bit of a leftist on this but (2, Interesting)

thisnamestoolong (1584383) | about 5 years ago | (#28772983)

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.

Re:I know I may be a bit of a leftist on this but (1)

Dahamma (304068) | about 5 years ago | (#28773239)

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.

Well - it's pretty misleading to claim that a company is "CAUSING human damage" by charging a lot of money to receive access to a medical technology that THEY developed in the first place. What's better - developing a cure for a fatal disease that is so prohibitively expensive that only 10% of the population can afford it, or not developing it at all and letting everyone who has the disease die? At least with the first option, there is potential for making the technology cheaper over time (as has happened for so many existing "basic services" it's pointless to count), leading to additional discoveries, etc. Besides, "scientists" rarely patent discoveries (or end up owning the patent). The companies who spend all the money building the labs and paying the scientists own the patents.

I agree it is a touchy subject (and the example patent in this article is absurd!) - but given that opinion, how would you realistically propose a source of funding/support for a multi-million dollar drug (or other medical technology) development effort? And "have the government pay for it" is obviously not going to work. The US govt can't even figure out how to provide BASIC health care for those who need it, let alone fund and manage the development of cutting edge experimental medical technology.

That doesn't mean the government can't figure out a better way to regulate the industry while preserving innovation... but currently patents are one of the few existing legal mechanisms a company has to recover the massive R&D costs incurred.

TANSTAAFL.

Re:I know I may be a bit of a leftist on this but (1, Insightful)

clickety6 (141178) | about 5 years ago | (#28773453)

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 ;-)

Does that mean my patent on wanking is fine? (0)

Anonymous Coward | about 5 years ago | (#28772991)

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!

knowledge patented by them? (1)

mcgrew (92797) | about 5 years ago | (#28773039)

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.

Re:knowledge patented by them? (0)

Anonymous Coward | about 5 years ago | (#28773157)

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.

I hate to break it to you, but the "Founding Fathers" weren't some infallible group of superhumans. Secondly, their opinions on so many topics were so disparate that to try to make any claim of what they had in mind as if they had a unanimous, overarching agreement on any one subject is a complete fantasy. I just really don't get this whole wankfest that so many people have over them.

Re:knowledge patented by them? (1)

Metasquares (555685) | about 5 years ago | (#28773171)

Neither writing a song nor writing a book are trivial endeavors. Actually, some scientific research takes less time and effort than either to publish.

Compound Issue (1)

bughunter (10093) | about 5 years ago | (#28773057)

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??

Death Quotient (1)

zooblethorpe (686757) | about 5 years ago | (#28773317)

At what point do we say "STOP! This unrestrained capitalism is KILLING us!" and apply some sort of humane regulation??

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,

I patent Death... oh wait the US gov't already did (0)

Anonymous Coward | about 5 years ago | (#28773123)

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.

Knowledge, or "Facts" should not be patentable. (3, Insightful)

Puls4r (724907) | about 5 years ago | (#28773149)

>>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:Knowledge, or "Facts" should not be patentable. (0)

Anonymous Coward | about 5 years ago | (#28773325)

It's never the knowledge or facts that is patented, or reading the patent would violate it. It is always application of the knowledge or facts. These are supposed to be knowledge and facts of the form "when you put together these mechanical components in this way, you get something that does such-and-such," but those are still facts - it's simply a matter of degree, not kind.

The real question is whether society benefits or is harmed, and frankly I don't know. Unfortunately, our society isn't set up to make those determinations very well - we're much better at whether those with the most lobbyists benefit or are harmed. In some cases these are positively correlated, in others they are negatively correlated...

As opposed to supernatural phenomena (1)

sorak (246725) | about 5 years ago | (#28773207)

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?

Please show me the ICE in nature (0)

Anonymous Coward | about 5 years ago | (#28773329)

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.

Re:As opposed to supernatural phenomena (1)

Vesvvi (1501135) | about 5 years ago | (#28773389)

Well, if you're looking for the application of knowledge, the patents are sorely lacking. They contain sentences like: "The level of 6-TG can be determined, for exacmple, in red blood cells using high pressure liquid chromatography (HPLC)". The same sentence is repeated elsewhere with the name of a different chemical substituted in for 6-TG.

A really novel HPLC method might be patentable, but that's not part of their patent at all. They just want to patent the idea of looking at these chemicals as a diagnostic tool.

Re:As opposed to supernatural phenomena (1)

Hatta (162192) | about 5 years ago | (#28773663)

, are they arguing that this procedure is obvious to anyone who understands basic science

Yes.

(and if so then wouldn't there be a mountain of prior art to nullify that patent)?

Yes, there's tons of prior art concerning the use of metabolites to divine what's going on in the body. There's just no prior art concerning the use of this specific metabolite.

Promethius is not a classic patent troll (1)

moon3 (1530265) | about 5 years ago | (#28773245)

No they are medicine patent troll, which puts them in the same pot together with the Nazi troll and RIAA troll in Hell.

I recommend the following approach. (0)

Anonymous Coward | about 5 years ago | (#28773275)

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.

Proposed constitutional amendment (1)

commodore64_love (1445365) | about 5 years ago | (#28773319)

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.

..... on the grounds that it has been more hassle than it's worth, and *stifled* progress rather than promote it.

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.

A patent on a method of testing might be ok... (1)

Poingggg (103097) | about 5 years ago | (#28773337)

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.

I don't think these meet patent standards. (1)

Jane Q. Public (1010737) | about 5 years ago | (#28773369)

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.

Profit? (1)

kungfugleek (1314949) | about 5 years ago | (#28773487)

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.

Summary & Prediction (1)

Absolut187 (816431) | about 5 years ago | (#28773543)

In March 2008, the district court held the patents invalid under 35 USC 101 for lack of patentable subject matter. The case is now on appeal to the Court of Appeals for the Federal Circuit (CAFC).

The CAFC recently decided two important cases under 101: In re Bilski (now on appeal to US Supreme Court) and In re Ferguson.
http://www.patentlyo.com/patent/2009/03/bilski-v-doll-round-i-of-amicus-briefs.html [patentlyo.com]
http://www.patentlyo.com/patent/2009/03/in-re-ferguson-patentable-subject-matter.html [patentlyo.com]

I could see the CAFC reversing this decision (with a very short opinion) and remanding with instructions to apply the "machine-or-transformation" test announced by the CAFC in Bilski.

According to the MIAA Spokesperson (0)

Anonymous Coward | about 5 years ago | (#28773553)

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.

Easy solution (1)

ATestR (1060586) | about 5 years ago | (#28773597)

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....

Can I patemt Me? (1)

BatGnat (1568391) | about 5 years ago | (#28773661)

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....
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