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Supreme Court Legitimizing Medical Patents?

samzenpus posted more than 2 years ago | from the prior-broken-arm-art dept.

Medicine 251

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.'"

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251 comments

Shenanigans!! All your thought are belong to us! (5, Interesting)

killfixx (148785) | more than 2 years ago | (#38301902)

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".

Re:Shenanigans!! All your thought are belong to us (1)

TheDarkMaster (1292526) | more than 2 years ago | (#38301934)

I think it's time to put a stop to it. And it will not using the courts or lawyers.

Re:Shenanigans!! All your thought are belong to us (5, Insightful)

devjoe (88696) | more than 2 years ago | (#38302294)

It will only stop when somebody attempts to apply the same strategy to the legal profession. Then, with any luck, one of two things will happen:
  1. 1. 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, and finally come to realize why this is such a problem in other areas, and finally fix it.
  2. 2. It succeeds, and everything does grind to a halt until Congress passes a massive overhaul to change it all (making it just retroactive enough to negate all patent lawsuits against their own overhaul.)

Re:Shenanigans!! All your thought are belong to us (5, Insightful)

Niedi (1335165) | more than 2 years ago | (#38302386)

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.

Re:Shenanigans!! All your thought are belong to us (1)

durrr (1316311) | more than 2 years ago | (#38302678)

Every retard patent is sapping efficiency from the system if enforced. So either patents become mostly unenforcable, or they are rabidly enforced and clogs the legal system entirely. Or they are rabidly enforced sucessfully and result in total collapse of society and everything else as ideas such as treating dehydration by drinking water and/or using photosynthetic non-domesticated organisms to generate O2 suddenly needs an annual license.

Re:Shenanigans!! All your thought are belong to us (0)

Anonymous Coward | more than 2 years ago | (#38303268)

That is exactly what happened with tax shelter "business method" patents.

Re:Shenanigans!! All your thought are belong to us (4, Funny)

wintercolby (1117427) | more than 2 years ago | (#38302390)

1. Patent a precise method used to record patent documents in a digital form on a computing device, a computing device with a touch screen, and a hand held computing device with a touch screen.
2. Write software that can be used to record patent documents in a digital form, a vi macro would suffice.
3. Sue patent trolls for patent infringement.
4. Profit.

Re:Shenanigans!! All your thought are belong to us (1)

linuxwolf69 (1996104) | more than 2 years ago | (#38302934)

You forgot hand held computing device without a touch screen, hand held computing device with a physical keyboard, hand held computing device with a keyboard accessory (i.e. USB, wireless, or BluTooth keyboard)

Re:Shenanigans!! All your thought are belong to us (1)

jythie (914043) | more than 2 years ago | (#38302642)

Unfortunately, what would probably happen is the patent office will simply say 'no you can not patent legal tactics/issues/etc' and that is the end of it. Carve themselves an exemption and allow the problem to continue. Kinda like how the banking industry got that wonderful exemption to patent suits in the new overhaul, it ended up ONLY applying to banks, even though it was tech companies that had originally lobbied for it.

Re:Shenanigans!! All your thought are belong to us (1)

Dragonslicer (991472) | more than 2 years ago | (#38302766)

You seem to be overlooking the fact that "grinding to a halt" is all that Congress understands these days.

Re:Shenanigans!! All your thought are belong to us (1)

stiggle (649614) | more than 2 years ago | (#38302884)

Actually - it would be better to apply the strategy to the politican lobbist 'profession'.
That way you can profit from those pork barrel profiteering schucks on Capitol Hill.

If you have the patent for lobbying & political donations then you can sue the MPAA, RIAA, oil & power industries :-)

Re:Shenanigans!! All your thought are belong to us (2)

Overzeetop (214511) | more than 2 years ago | (#38303172)

It will never get past (1), as congress will exempt itself from the law, like it does with nearly every other regulation, and go about in their blissfully unfettered world.

Re:Shenanigans!! All your thought are belong to us (1)

youn (1516637) | more than 2 years ago | (#38303282)

I say we move to patent sitting in a court of justice and using a small hammer like device to call court to order :)
then we patent electoral campaign fundraising

either we get lots of money or we get the patent system changed in no time... either way we win :)

Re:Shenanigans!! All your thought are belong to us (0)

Anonymous Coward | more than 2 years ago | (#38302242)

This is actually very funny, but I think it explains why Americans are so blaze about their rights, if they need a Revolution, they have plenty of guns to do it with. They'd be shooting at their children/friends/parents in the army or police, but I guess they know what they're doing.

Re:Shenanigans!! All your thought are belong to us (4, Interesting)

gmuslera (3436) | more than 2 years ago | (#38302248)

Considering how US laws (specially patent and copyright ones) are push over other countries, the only way to get rid of it is at the source, not running away.

Re:Shenanigans!! All your thought are belong to us (-1)

Anonymous Coward | more than 2 years ago | (#38302622)

And yet you're just a chickenshit who won't do squat. Keep raging against the machine in your basement their, chickenhawk.

The stupid! It hurts! (5, Insightful)

Chas (5144) | more than 2 years ago | (#38301910)

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.

Re:The stupid! It hurts! (5, Insightful)

antido (1825442) | more than 2 years ago | (#38301974)

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.

Re:The stupid! It hurts! (5, Informative)

Theaetetus (590071) | more than 2 years ago | (#38302028)

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.

Legal fees (5, Insightful)

tepples (727027) | more than 2 years ago | (#38302114)

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.

Re:Legal fees (5, Informative)

datavirtue (1104259) | more than 2 years ago | (#38302420)

Indeed, patents have some how strayed wildly from their intended purpose. For instance, Monsanto is suing farmers who's fields have been pollinated (yes, through wind drift, and birds, and bees) from other neighboring farmers who happen to use their seeds (GMO, patented). This is not what patents are for! Patents are to protect Monsanto against other manufacturers copying their genetic seed developments. Yet Monsanto has successfully crushed farmers whose fields have been pollinated (from wind drift) and who refused to purchase their seeds--all under patent law! Judges have no knowledge of this system, and people cannot defend themselves properly against big business. This is a mess.

Re:Legal fees (3, Interesting)

datavirtue (1104259) | more than 2 years ago | (#38302472)

My theory is that Monsanto launched this offensive to knock of balance those who would sue them because Monsanto's GMO crops pollinated and therefor contaminated their crop, be it organic or not. These GMO crops are not popular in other parts of the world, banned in certain parts of Europe--and refused by many others, so Monsanto is on the ropes and swinging wildly for fear that America will ban them as well. The seed business is a nasty one indeed.

Re:Legal fees (2)

ILongForDarkness (1134931) | more than 2 years ago | (#38303186)

They also don't allow you to take the seeds from the plants that you grow from their seeds. You have to buy new seed every year. I suspect that might be more of the reason. They really want to cover all angles so that people that are customers are forced to keep coming back every year.

Re:Legal fees (2, Informative)

Grond (15515) | more than 2 years ago | (#38302598)

The Monsanto cases typically involved farmers who intentionally harvested and planted GMO seeds, not accidental pollination. The most famous such case occurred in Canada, by the way, not the US [wikipedia.org].

Re:Legal fees (4, Informative)

jonwil (467024) | more than 2 years ago | (#38303238)

There is a story (mentioned in the documentary Food Inc IIRC) about someone who owned a machine for cleaning soybean seeds so they could be re-planted. Monsanto went after him and basically said "unless you can prove that not a single Monsanto GM seed went through your machine, we will sue you"

Re:Legal fees (3, Informative)

wienerschnizzel (1409447) | more than 2 years ago | (#38302836)

You are probably refering to Monsanto v. Schmeiser case [wikipedia.org]. Correct me if I'm wrong but there were no other cases like that.

There is no-one sued just for having his crops pollinated with Monsanto's Roundup wheat. The farmer was sued because he knowingly planted Monsanto's seeds. On the other hand the judge also ruled against any financial compensation to Monsanto as the farmer did not gain anything by his actions.

It still sucks that the farmer ended up paying a fortune for legal aid while not doing anything wrong, on the other hand the judges made a correct decision - it's not their fault that the legislature is what it is.

From the ruling:

93 Inventions in the field of agriculture may give rise to concerns not raised in other fields -- moral concerns about whether it is right to manipulate genes in order to obtain better weed control or higher yields. It is open to Parliament to consider these concerns and amend the Patent Act should it find them persuasive.

94 Our task, however, is to interpret and apply the Patent Act as it stands, in accordance with settled principles. Under the present Act, an invention in the domain of agriculture is as deserving of protection as an invention in the domain of mechanical science. Where Parliament has not seen fit to distinguish between inventions concerning plants and other inventions, neither should the courts.

Re:Legal fees (2)

paiute (550198) | more than 2 years ago | (#38302952)

Shut you fact-filled face! Monsanto seeds and McDonalds coffee are memes now which everyone knows the truth about without having to know the actual details.

Re:Legal fees (1, Informative)

the eric conspiracy (20178) | more than 2 years ago | (#38303462)

Complete BULLSHIT. The cases where Monsanto sued farmers all involve instances where farmers intentionally planted seed which they knew contained unlicensed genetic material. There has never been a case including the famous Monsanto vs Schmeiser where accidental pollination was the sole event.

Re:The stupid! It hurts! (3, Interesting)

oh_my_080980980 (773867) | more than 2 years ago | (#38302500)

According to the article:

"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."

If anyone is spreading FUD it's the patent holder.

Re:The stupid! It hurts! (1)

Chas (5144) | more than 2 years ago | (#38302878)

That doesn't mean they can't try.
Still costs to go to court.

Doesn't mean they can't sue the practice. The practice is a legal entity of itself.

Doesn't mean they can't sue a hospital, clinic or other medical institution.

There's also the possibility that this ruling may or may not supersede these provisions. Again, another long, drawn out, EXPENSIVE court battle.

They're basically depending on someone giving them money to go the fuck away. And the shitty part is, it'd probably be cheaper than fighting it out through our head-up-ass judicial system.

Re:The stupid! It hurts! (1)

Overzeetop (214511) | more than 2 years ago | (#38303218)

Simple: for $20000, Medi-Jackass will offer to settle our of court, with both sides knowing full well that litigation will cost the doctor $100,000+. The doctor's insurance company will then inform him that if he screws up like that again, they will drop him, making him effectively unable to practice.

See how easy that was?

Re:The stupid! It hurts! (1)

ZombieBraintrust (1685608) | more than 2 years ago | (#38302202)

This is about if a generic version of the drug can be sold now that the patent on the drug has expired. There are still use patents on it though. Though some uses are not patented. The downside is not that the patient would not receive medicine. But that the patient would receive expensive medicine instead of the generic.

Re:The stupid! It hurts! (5, Informative)

DJ Jones (997846) | more than 2 years ago | (#38302888)

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.

Re:The stupid! It hurts! (1)

ILongForDarkness (1134931) | more than 2 years ago | (#38303292)

Cost of clinical trials/marketing the drug for the new purpose? Probably doesn't justify a 100X price increase but still its worth something.

Re:The stupid! It hurts! (2)

August_zero (654282) | more than 2 years ago | (#38302464)

Today a patent on titration, tomorrow on breathing.

Insulin pump -- prior art? (0)

Anonymous Coward | more than 2 years ago | (#38302792)

This sounds to me (a layman) quite similar to what the Insulin Pump does -- it measures blood sugar (rather than a metabolite) and automatically dispenses a measured dose of insulin in response.

Re:Insulin pump -- prior art? (0)

Anonymous Coward | more than 2 years ago | (#38303298)

Or the relation between warfarin and the INR. There are well-known dosing algorithms that are used to adjust the dose based on the latest INR measurement from the patient.

Re:The stupid! It hurts! (4, Insightful)

rnturn (11092) | more than 2 years ago | (#38302618)

It's bad enough that my family physician has to employ a couple of people whose sole job is to deal with the insurance companies all day long. Now it seems, if this idea is approved by the Supreme Court, they'll need to have a patent attorney on retainer to make sure they don't run afoul of some pharmaceutical company who found that a drug's effectiveness can actually be measured.

I thought it was supposed to be a bad idea to have the government getting between the doctor and the patient. If this isn't government getting between me and my doctor, I sure as hell don't know what is.

Re:The stupid! It hurts! (1)

geekoid (135745) | more than 2 years ago | (#38303406)

All I can hope for is people on /. will read and understand articles before posting...but clearly you have shown that hope is in vain.

Re:The stupid! It hurts! (1)

BlackSnake112 (912158) | more than 2 years ago | (#38303428)

No one claimed prior art? Someone got paid off big time. Measuring something in people's blood (or other places) then changing the dosage of medicine has been going on for decades. They are measuring one chemical. So do a lot of other tests that have been going on for decades.

example: All the people who measure the sugar levels in their blood then give themselves (or have someone give them) a shot.

Many things are measured in people to determine the amount of medicine they should be getting. This is not new. Or even innovative. Patents are supposed to be specific. Like the gun patents were in the 1800s. How many gun patents are there? A change to the trigger mechanism or the way the barrel moves, new patent. A whole lot were thrown out since they were not different enough from existing patents (if I remember that history channel show about guns correctly). This patent was written as broad as possible. That alone should be reason to have it thrown out.

Jumping the gun? (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38301914)

Just because they heard the case doesn't mean "Supreme Court Legitimizing Medical Patents".

That's a troll headline.

Re:Jumping the gun? (0)

Anonymous Coward | more than 2 years ago | (#38302018)

Not quiet, seeing as the mass of evidence against allowing this nonsense was basically ignored. The decision was already made (follow the money) and this is a mere rubber-stamping exercise.

Re:Jumping the gun? (3, Interesting)

alen (225700) | more than 2 years ago | (#38302118)

the Supreme Court is not a trial court, they only hear appeals after a trial has taken place and appeals to lower level courts have been exhausted. they don't hear any evidence.

the parties submit their briefs, other parties submit their briefs depending on who's side they are on. the record of the case goes to the justices. each party gets something like 15 minutes to summarize their case during which they are constantly interrupted by the justices with their questions.

almost a year later after looking at the records the justices give a decision and most times the case is sent to a lower court for more litigation

don't believe idiotic tech magazine stories written by people who don't know how it works

Re:Jumping the gun? (0)

Anonymous Coward | more than 2 years ago | (#38302042)

I read the arguments and I'd say the title was right. The Mayo clinic lawyer dug a big hole and then proceeded to lay in it. Kagan gave advice on how to file better Medical patents.

When libertarian think tanks, the ACLU, and the American Medical Association ALL AGREE that medical patents are a bad idea and NOT ONE lawyer or justice alike mentions it, then you know something is very very wrong.

Re:Jumping the gun? (1)

alen (225700) | more than 2 years ago | (#38302134)

not surprising since the Mayo Clinic came up with something similar and the litigation is about how broad a patent like this can be

Re:Jumping the gun? (1)

AdamJS (2466928) | more than 2 years ago | (#38302860)

Does it help a money-grubbing corporation, or an agency that has no desire but to screw over as many people as possible?
Then you can generally assume the SCOTUS will vote that way.

This is a basic intelligence test for SCOTUS (5, Insightful)

WOOFYGOOFY (1334993) | more than 2 years ago | (#38301920)

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.

Re:This is a basic intelligence test for SCOTUS (-1, Troll)

Theaetetus (590071) | more than 2 years ago | (#38302072)

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.

Yes, clearly "Woofy Goofy" knows more about the law than the Supreme Court.

Re:This is a basic intelligence test for SCOTUS (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38302212)

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.

Yes, clearly "Woofy Goofy" knows more about the law than the Supreme Court.

Justices in the supreme court ARE POLITICAL appointees.
What makes you think they are the best the country has to offer ?
Get a reality check please.

Re:This is a basic intelligence test for SCOTUS (4, Insightful)

ChrisMP1 (1130781) | more than 2 years ago | (#38302254)

Instead of an insult, you could add to the discussion by pointing out where he was wrong and explaining what is correct. Or, if you don't know, you could just not speak, which will still give a higher net contribution to the conversation.

Re:This is a basic intelligence test for SCOTUS (5, Insightful)

WOOFYGOOFY (1334993) | more than 2 years ago | (#38302462)

I'm sorry what aspect of law would you be referring to? The law the Supreme Court makes? By that measure, they're always right, irrespective of how they decide an issue. In logic, we call that a "tautology"

The aspect of the law I am referring to is its "justness" and "advisability". The extension of patent "rights" into methods and software is not only inadvisable, but also unjust .

In fact, another source of some authority on US law, the U.S. Constitution states that patents will be granted for the purpose of ADVANCING the useful arts and sciences. Failing that, no patent is deserving. Advancing the useful arts and sciences is not synonymous with advancing the material welfare of corporations or individuals, despite what Ayn Rand claims.

You talk as though citizens whose rights and livelihoods are going to be directly affected by their own judiciary's decisions ought to somehow stand meekly aside and permit the "experts" in law decide what the law shall be.

I have two words for you: Dred Scott.

Actually, your "tut tut" attitude might make some sense if the law in question was only concerned with measurable facts , like say theoretical physics., or the effect of excess carbon on the planet's temperature.

But it makes exactly zero sense when the subject matter is what a people shall declare a normative law- which will rule them all- shall be.

Maybe you're an IP lawyer. Maybe you're a lobbyist. Maybe your a bureaucrat. Maybe you're a patent holder. Really, those are the only categories of people I know of who would take the attitude that democracy should be a spectator sport and the people should not involve themselves, much less get worked up about, the morality or advisability of their own laws.

Re:This is a basic intelligence test for SCOTUS (2)

Theaetetus (590071) | more than 2 years ago | (#38302744)

The extension of patent "rights" into methods and software is not only inadvisable, but also unjust .

What extension are you referring to? 35 USC 101 states that patent eligible subject matter includes processes. 35 USC 100 says that "process" includes "method". So what's being extended when we say that methods are patentable?

In fact, another source of some authority on US law, the U.S. Constitution states that patents will be granted for the purpose of ADVANCING the useful arts and sciences. Failing that, no patent is deserving.

Respectfully, you're misreading the Constitution. It doesn't say that patents will be awarded to those who advance innovation. It says that a patent law system shall be created to encourage innovation... each individual patent doesn't have to encourage innovation, rather the system as a whole must.

And in fact, there has never been a requirement for a patent than an invention be "deserving". Novel, yes. Useful, yes. Nonobvious, yes. But "deserving"? "Advancing the arts"? No.

Furthermore, in Juicy Whip v. Orange Bang, the Federal Circuit said that the job of the patent office was to determine utility, novelty, and nonobviousness... not "deservedness".

You want an award for a great discovery? Get a Nobel prize. Patents are about limited commercial monopolies in exchange for public disclosure.

And the patent law system does advance innovation... unless you've got some evidence that innovation hasn't been advancing? Consider software, which was made patentable in the 1980s... are you saying that software was advancing faster pre-1980 and since has barely advanced?

Actually, your "tut tut" attitude might make some sense if the law in question was only concerned with measurable facts , like say theoretical physics., or the effect of excess carbon on the planet's temperature.

Actually, my "tut tut" attitude was solely in reference to an anonymous internet yahoo saying "if the Supreme Court doesn't decide something the exact way I do, then clearly, they can't be intelligent." It's also in reference to your Randian "this is the end of innovation, and all us innovators will go Galt and leave the US." Fine, go right ahead... Libya has no patent rights, and I hear there's an emerging marketplace.

Maybe you're an IP lawyer. Maybe you're a lobbyist. Maybe your a bureaucrat. Maybe you're a patent holder. Really, those are the only categories of people I know of who would take the attitude that democracy should be a spectator sport and the people should not involve themselves, much less get worked up about, the morality or advisability of their own laws.

Yeah, that's exactly what I said... or not. Maybe you're a journalist. Maybe you're a lobbyist. Maybe you're a shill, spreading FUD. Really, those are the only categories of people I know of who build up strawmen to defeat and then claim they're heroic.

Re:This is a basic intelligence test for SCOTUS (1)

WOOFYGOOFY (1334993) | more than 2 years ago | (#38303248)

What extension are you referring to? 35 USC 101 states that patent eligible subject matter includes processes. 35 USC 100 says that "process" includes "method". So what's being extended when we say that methods are patentable?

The words "process" and "method" in both these are meant to be the subject of interpretation and ultimately restrictive delineation. If not, then ANY process and ANY method whatsoever could be patentable and no one believes that.

Laws are written to be interpreted by courts. Yes, it sometimes functions in a "pass the buck" way, but that's to the general good. If it were otherwise then we'd require that legislators at any given point in time be omniscient about all future developments and take them explicitly into account when making a law .

So you're begging the question- a logical fallacy.You're just pointing to 100 and 101 and saying "see it says "method" right there".

But the question at hand is just exactly what SHALL qualify as a protectable method.

In YOUR definition in YOUR opinion, the method under review qualifies for protection. To then argue that because you are of that opinion therefore the matter is settled is known as "assuming the consequent", yet another logical fallacy.

In fact, another source of some authority on US law, the U.S. Constitution states that patents will be granted for the purpose of ADVANCING the useful arts and sciences. Failing that, no patent is deserving.

Respectfully, you're misreading the Constitution. It doesn't say that patents will be awarded to those who advance innovation. It says that a patent law system shall be created to encourage innovation... each individual patent doesn't have to encourage innovation, rather the system as a whole must.

Respectfully, you're misreading both my quote and the Constitution. I never said that Constitution said patents will be awarded to those who advance innovation.

What I said, and what it does in fact say, is that patents are to be issued FOR THE PURPOSE of advancing the useful arts and sciences.

Patents are not an inalienable right, they exist only to serve a larger purpose. If they don't serve that purpose, then they should not be issued. It goes without saying that if they positively work against that purpose, they will not be issued.

So the question remains- does this claimed "method" promote or retard the advancement of the useful arts and sciences, or is it perhaps neutral?

By your reasoning , we should not contemplate whether each extension of subject matter into patentability is wise, so along as the system en toto and on balance tends to promote innovation more than it impedes it.

I would not want to be reduced to making that argument before SCOTUS. It's a career ender, not to mention a ham-fisted definition of the word "promotes" .

And in fact, there has never been a requirement for a patent than an invention be "deserving". Novel, yes. Useful, yes. Nonobvious, yes. But "deserving"? "Advancing the arts"? No.

You're giving a twisted version of what I said, and also, you're materially wrong.

First what I said was IF the invention does NOT promote the useful arts and sciences THEN it is not deserving of patent protection.

The word "deserving" in the above was never proffered as a requirement, it was merely how I characterized subject matter which was conformant to the requirements set forth in the Constitution.

Secondly, you're just wrong.

"Advancing the arts"? No.

The Constitution uses just those words:

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;

Let's hope that settles that.

Actually, my "tut tut" attitude was solely in reference to an anonymous internet yahoo saying "if the Supreme Court doesn't decide something the exact way I do, then clearly, they can't be intelligent."

I think it's apparent now where the yahoo in this conversation is located.

It's also in reference to your Randian "this is the end of innovation, and all us innovators will go Galt and leave the US." Fine, go right ahead... Libya has no patent rights, and I hear there's an emerging marketplace.

You need to work on reading comprehension. Everyone else, I am pretty sure, knows I was criticizing Rand. Go re-read what I wrote. In fact, perhaps reading in general ought to be moved up on your list of things to do.

Really, those are the only categories of people I know of who build up strawmen to defeat and then claim they're heroic.

Because your house has no mirror?

Re:This is a basic intelligence test for SCOTUS (1)

the eric conspiracy (20178) | more than 2 years ago | (#38303364)

I'm a patent holder. Twelve of them to be precise. In a field other than software. And you can bet that every time I read one of these patent articles on slashdot I get worked up - at the utter ignorance of most of the commentators regarding the US Patent system.

I have a question for you - you have expressed a opposition towards the current system in the US. And you have expressed disdain towards those who think democracy should be a spectator sport.

OK, HAVE YOU ACTIVELY PARTICIPATED IN A POLITICAL PROCESS TO CHANGE THE STATUS QUO.

And don't give me BS about the process being rigged. Look at what happened to H.R.3261 after a few phone calls.

Re:This is a basic intelligence test for SCOTUS (0)

Anonymous Coward | more than 2 years ago | (#38302508)

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.

Alas, fleeing is futile, for your homeland has very long and very strong arm and besides nowhere else you'll find both more freedom and opportunity. All the lands bow to the USA and obey, or struggle starvation because America controls the international trade. At least you can do something about it because you vote those people, and your rights are upheld, while for the rest of us they couldn't care less. We all are looking up to you, Americans, to stop any similar madness from hatching, because once it is out, we know we can do nothing to stop it from being forced upon all of us too. You, the people of USA, are world's last hope, because your politicians and your military might obey only you, ... at least in theory, that is.

Ever since the Cold War ended we have seen old style (personal) tyrannies eradicated, which is good, only to see a new style faceless plutocratic global dictatorship installed. To add insult to injury, you too are being screwed over by them bringing the forced "international agreements" back home as law above the law.

Re:This is a basic intelligence test for SCOTUS (2)

fnj (64210) | more than 2 years ago | (#38302874)

Yes. Fleeing for greener pastures is also fundamentally cowardly. The US constitutes a democratic republic. People: presidents and representatives win and lose elections. USE the fucking elective power GUARANTEED to you, goddammit. I know it's not easy; I know the two parties have come to constitute a de facto oligarchy. But the bottom line is that no one can (yet) stop you writing in anyone's name on an election ballot. The grass roots must organize.

The power of the internet in leveling the playing field of ideas and persuasion is a staggering revolution.

Re:This is a basic intelligence test for SCOTUS (1)

Hatta (162192) | more than 2 years ago | (#38302552)

Sorry, we passed that bar a long time ago. There is no limit to the ignorance and malfeasance of the SCOTUS.

Re:This is a basic intelligence test for SCOTUS (1)

sgt scrub (869860) | more than 2 years ago | (#38302574)

or we leave our country in favor of a land that offers more freedom and opportunity

See. There IS a benefit to living in a trailer.

Re:This is a basic intelligence test for SCOTUS (1)

denis-The-menace (471988) | more than 2 years ago | (#38302606)

RE: we leave our country in favor of a land that offers more freedom and opportunity. Just like our forefathers did.

So.. Where do you plan to go?

Anywhere that is comparable (Canada, Australia, etc...) is being bullied/manipulated/bought by US Gubbermint/Corps.

In a race to the bottom, Canada and Australia are catching-up with the US' retarded laws. I give them 5 - 10 years tops before we are as locked-down and void of "motivated people who want to do Good Things" as the US.

This is the "Stupid test" indeed.

Re:This is a basic intelligence test for SCOTUS (1)

SirGarlon (845873) | more than 2 years ago | (#38302640)

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.

We may be free to leave this country, but it doesn't follow that we are free to move to another. There are plenty of smart, motivated people who are not welcome in the EU, for instance if they are too old.

Re:This is a basic intelligence test for SCOTUS (1)

the eric conspiracy (20178) | more than 2 years ago | (#38303112)

Logically that is a ridiculous statement. Anything technological must be based on the use of facts or it wouldn't work.

The development of a novel process or device with utility is simply the use of facts in a way that hasn't been previously accomplished.

Re:This is a basic intelligence test for SCOTUS (1)

WOOFYGOOFY (1334993) | more than 2 years ago | (#38303402)

Long ago the court decided that mere facts and laws of nature are not patentable. What else is there to say? Let me debug your thinking. You're mixing up "necessary" with "sufficient". All useful inventions have to confirm to the laws of physics and logic, that is, the facts of the universe. That doesn't mean that every fact or set of facts is patentable. So yes, there are no inventions without facts. It's necessary to, broadly speaking, deal with facts, logic and , implicitly, laws of nature either directly or indirectly in any patent application. But for any patent application, it's not sufficient. Well, except one constructed in such a way to claim monopoly power of such facts. In that case, it is sufficient. Sufficient to get it rejected.

Requires a License to Prescribe ? (3, Interesting)

arthurpaliden (939626) | more than 2 years ago | (#38301922)

So the doctor needs a license from the patent holder to effectively administer the drug. Well I can see that generating a lot of sales of the drug. Not.

Generic version (5, Informative)

ZombieBraintrust (1685608) | more than 2 years ago | (#38302170)

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.

That's more than... (1)

rasherbuyer (225625) | more than 2 years ago | (#38301952)

That's more than fucked up.

If you crazy Americans legalise shit like that you all deserve what you get.

Re:That's more than... (2)

gmuslera (3436) | more than 2 years ago | (#38302356)

You are not safe of it outside. There are plenty of american laws regarding patents and copyrighted content that are push to other countries like there is no tomorrow, and the other countries (or their legislators, those "incorruptible" entities that make laws) usually put forward those laws. See what happened around the Sinde law in Spain, even after was public why they were approving it.

This is why you can't have nice things. (0)

Anonymous Coward | more than 2 years ago | (#38302002)

Nice things, you can't have them.

Self defeating arguments? (3, Insightful)

Anonymous Coward | more than 2 years ago | (#38302008)

I know nothing about the US patent system - but my first thought on reading this was as follows.
Proper administration of the drug is supposed to violate the patent.
The drug in question is out of patent... (for years)
Does this mean that there was an extended prior where the drug was not able to be administered correctly to start with, or does their argument cause the 'method' patent to be invalid on grounds of prior art which must have existed in order for the drug to be administrated properly in the first place.

nitpicking the defense lawyer (0)

Anonymous Coward | more than 2 years ago | (#38302010)

the article seems to bitch about how the lawyer is handling the defense. he's not being paid to defend your civil liberties he's being payed to win the case that's easier to do by invalidating the patent on a technical basis.

Supreme Court has failed the country (1)

roman_mir (125474) | more than 2 years ago | (#38302032)

Supreme Court, like all other government institutions has failed the country by abandoning the Constitution and aligning with special privileges.

By the way, do not forget your rights if you become a jury - NULLIFICATION.

You are not there only to find guilt of the defendant, you are there to question the morality of the law itself. Do not be bullied by the judges, who tell you that they are the law and you must only judge based on the law itself. Always remember - any proceeding where the individual is standing against the government in any way, it's likely that the government is doing the wrong thing.

Do not go along, prevent the unjust laws from existing by acquitting the defendant based on the law being unjust.

Re:Supreme Court has failed the country (0)

Anonymous Coward | more than 2 years ago | (#38302086)

Supreme Court, like all other government institutions has failed the country by coming up with positions on things after examination which don't match my knee-jerk reaction after no examination

There, fixed that for you.

Summary judgment (4, Interesting)

tepples (727027) | more than 2 years ago | (#38302132)

By the way, do not forget your rights if you become a jury - NULLIFICATION.

Which is one reason why a lot of litigants are so quick to get matters of law disposed of in summary judgment, so that the question of fact has no chance to even go before a jury.

Re:Summary judgment (2)

Grond (15515) | more than 2 years ago | (#38302736)

Apparently you don't understand how summary judgment works. Summary judgment will not be granted if there is a genuine dispute as to a material fact (i.e. a fact that could affect the outcome of the case). The purpose of summary judgment is to resolve issues of law that would not be given to the jury, or to save the time and effort of a trial if the facts are undisputed. Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.

Re:Summary judgment (1)

tepples (727027) | more than 2 years ago | (#38302870)

Whether the claims are patent eligible under 101 is an issue of law that would not be submitted to the jury in any case.

That's sort of what I meant, but in the rush to get things posted before the bus left, I mistyped. I apologize.

Re:Supreme Court has failed the country (0)

Anonymous Coward | more than 2 years ago | (#38302276)

roman is a well known neocommunist.

Re:Supreme Court has failed the country (1)

roman_mir (125474) | more than 2 years ago | (#38302438)

I don't know what neocommunists are, but hopefully they are people who stand for the individual rights and they inform other people of their rights so that nobody forgets they have rights.

Re:Supreme Court has failed the country (1)

fnj (64210) | more than 2 years ago | (#38302954)

Yeah, a witless label sure defeats roman's arguments. NOT.

US IP (1)

Anonymous Coward | more than 2 years ago | (#38302096)

Method patents for medicine are absurd. You can patent surgical techniques, which is super beneficial for all. They don't accept such nonsense in Europe.

Re:US IP (1)

Theaetetus (590071) | more than 2 years ago | (#38302796)

Method patents for medicine are absurd.

... except that Congress said in 35 USC 101 that methods are patentable. They didn't say "methods are patentable, except diagnostic methods, business methods, software methods, etc., etc." So, while you may think it's absurd from a policy perspective, it's not absurd from a legal perspective.

You can patent surgical techniques, which is super beneficial for all. They don't accept such nonsense in Europe.

In the US, you can patent surgical techniques, but you can't collect damages from doctors or hospitals for infringement. So no one bothers. The EU simply implements by legislation what the market has already accomplished in the US.

Dumb: haven't they heard of insulin? (0)

Anonymous Coward | more than 2 years ago | (#38302154)

Isn't it routine to administer insulin to diabetics based on testing of the sugar concentration in their blood, the concentration of which is one of the products resulting from varying insulin concentrations in the first place?

You can't patent a scientific concept. You can patent the implementation in a device (or unfortunately in software), sure, but the idea itself? That's just crazy.

Stories like this (0)

Anonymous Coward | more than 2 years ago | (#38302156)

Stories like this are why living on John Galt's island would really begin to suck after a while.

Not really, not yet (5, Informative)

Dachannien (617929) | more than 2 years ago | (#38302174)

I read the transcript [supremecourt.gov] 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.

Re:Not really, not yet (2)

ideonexus (1257332) | more than 2 years ago | (#38302408)

Thank you so much for posting this. I find the Supreme Court transcripts fascinating and agree with critics who argue the Supreme Court cases should be broadcast live on C-SPAN since they are infinitely more fun than watching an empty House do nothing all day.

On the topic of the Supreme Court debating scientific issues, it's interesting that the National Academies Press publishes a manual [nap.edu] intended to educate judges on how to evaluate scientific evidence. The anecdotal evidence implies that not many of them read it.

Re:Not really, not yet (0)

Anonymous Coward | more than 2 years ago | (#38303190)

>This isn't the end of the road for this case

But will be the end of the road for similar cases where no prior art exists.

This is like allowing a patent on rising the thermostat when you are feeling cold...

Wrong therapy (1)

harvey the nerd (582806) | more than 2 years ago | (#38302388)

Older Americans know what previous art patent medicine Prometheus' management and counselors missed: Col. Colt's Lead Therapy.

A new addendum to scientific method (1)

elrous0 (869638) | more than 2 years ago | (#38302414)

Results should be reproducible*

* unless you patent them, in which case HANDS OFF, other scientists!

Infringing a Patent Unknowingly (1)

Tokolosh (1256448) | more than 2 years ago | (#38302664)

"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..."

Please correct me if I am wrong, but my understanding of American patent law is that the physician will infringe the patent even if he is not aware of the patented correlation, and will thus be liable?

Re:Infringing a Patent Unknowingly (1)

Overzeetop (214511) | more than 2 years ago | (#38303314)

Yes. It's much the same as other IP in this instance - foreknowledge and intent are (mostly) irrelevant.

please find prometheus' email (0)

Anonymous Coward | more than 2 years ago | (#38302672)

I want to mail them some displeasure

For want of a good hypothetical... (1)

Freddybear (1805256) | more than 2 years ago | (#38302746)

http://www.scotusblog.com/2011/12/argument-recap-for-want-of-a-good-hypothetical/ [scotusblog.com] ...Over and over, the Court puzzled over how one could start with a law of nature, which is not eligible for a patent, and then find a way to expand on it that is creative enough to earn a patent. It is an inquiry, one of the Justices said early on, that might lend itself to the conjuring of “millions of hypotheticals.” But the hypotheticals that were forthcoming were not very helpful.

Not medical patents (1)

geekoid (135745) | more than 2 years ago | (#38303322)

"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.'"

This happens to involve doctor patient, but this type of things could apply to any service provider and customer.

The lawyers say: (1)

Hartree (191324) | more than 2 years ago | (#38303502)

Sorry, but the fact that your patient is still screaming in agony after the minimum dose of morphine can't be used as evidence that they might need more of the drug. That would infringe.

We suggest rolling a six sided dice and scaling the dose based on that.

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