Comments on: Medical Patents

Medical Patents

jeffburdges — Thu, 08 Dec 2011 13:36:32 -0800

Prometheus Labs v. Mayo Clinic has the potential to make decision procedures about medical treatment patentable.

`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.'

By: dig_duggler

dig_duggler — Thu, 08 Dec 2011 13:40:58 -0800

This is beginning to sound like my grandparents talking about Twitter. But, you know, if their ramblings about Twitter became rule of law.

By: mullingitover

mullingitover — Thu, 08 Dec 2011 13:41:58 -0800

So it's like software patents, except people will die as a result of this.

By: GallonOfAlan

GallonOfAlan — Thu, 08 Dec 2011 13:46:23 -0800

But shareholders will coin it in! So that's alright then.

By: -harlequin-

-harlequin- — Thu, 08 Dec 2011 13:47:36 -0800

it covers the idea Since ideas are specifically prohibited from being patentable, can't we simply just start playing by the rules again? No? Um, ok then.

By: delmoi

delmoi — Thu, 08 Dec 2011 13:49:45 -0800

Hmm, that's interesting. On the one hand this seems like it would be as invalid as a 'business model patent', but on the other hand if patents are supposed to cover a 'machine or transformation' -- and isn't a medical procedure technically a transformation? Just a transformation on a human. Still seems like a bad idea, of course (And this patent doesn't even sound like it covers an actual operation, just a diagnostic step)

By: Bunny Ultramod

Bunny Ultramod — Thu, 08 Dec 2011 13:50:18 -0800

I also had the idea that when I am in pain, I need more drugs, so maybe they should be paying ME.

By: delmoi

delmoi — Thu, 08 Dec 2011 13:50:49 -0800

Also, does this mean that I could go out and file a patent on the use of any drug out there? Has anyone filed a patent on prescribing Viagra? I could be rich!

By: griphus

griphus — Thu, 08 Dec 2011 13:50:51 -0800

I am glad they are living up to their namesake by staking bold, new territory in the world of hubris.

By: exogenous

exogenous — Thu, 08 Dec 2011 13:50:59 -0800

This seems like a pretty decent review for the lay audience of the issue in this case: what is patentable subject matter under 35 USC 101. IMO the author of the Ars Technia article should have made a little more effort before writing that article. Then again, the Supreme Court doesn't really seem to have good grasp of the law either (maybe that's why they accepted this case, to try and correct Bilski).

By: penduluum

penduluum — Thu, 08 Dec 2011 13:52:45 -0800

At one point, Justice Kagan offered some advice to Prometheus's lawyer. "What you haven't done is say at a certain number you should use a certain treatment, at another number you should use another treatment," she said. "I guess the first question is why didn't you file a patent like that? Because that clearly would have been patentable. Everybody agrees with that." Ah Christ, this is going to break bad, isn't it.

By: jeffburdges

jeffburdges — Thu, 08 Dec 2011 13:55:06 -0800

People already die over drug and medical patents, mullingitover, especially poor people in poor countries. Any asthmatics here? Do you recall how inhalers got expensive and shitty several years back? Asshats patent hounds obtained a patent on delivering the off-patent drug Ventolin using the CFC free propellant to which other spray devices have switched. And they lobbied congress to ban the superior off patent inhalers.

By: likeso

likeso — Thu, 08 Dec 2011 13:56:43 -0800

Is there any limit to the greed, here? I think I'll patent the idea that one should draw breath into one's lungs in order to oxygenate blood. And take in fluids "to prevent dehydration". Oh wait, that one didn't work, did it?

By: Fezboy!

Fezboy! — Thu, 08 Dec 2011 14:04:45 -0800

Perhaps you should have said, "if your blood oxygen level is this percentage, you should breath more deeply. If it is this percentage you should leave the hyperbaric chamber." Everyone agrees that is patentable, likeso.

By: xedrik

xedrik — Thu, 08 Dec 2011 14:13:45 -0800

Not too long ago, lots of small businesses in the small town I'm from pooled together to bulk up the food banks just before Thanksgiving. Slightly earlier, again, lots of downtown businesses opened their doors and gave away hundreds of pounds of free candy to the 550+ trick-or-treaters (told you it's a small town) that came through and enjoyed the Downtown Trick-or-Treat. This month, a number of small businesses pooled donations to fund programs that help people keep their heat on through the winter months. All of this is done with no reward, no advertising or acknowledgement, because none is desired. It's giving simply for the sake of giving because it's the right thing to do. And on the other hand, we have corporations fighting over patent nonsense while lives likely hang in the balance.

By: jedicus

jedicus — Thu, 08 Dec 2011 14:19:22 -0800

Also, does this mean that I could go out and file a patent on the use of any drug out there? The US already allows patents on new uses for existing drugs. So if you discover that old drug A can be used to treat disease X, then you can patent a method of treating disease X comprising administering drug A (assuming this use is new and nonobvious). What you can't get is a new patent on the compound itself. And since an approved drug can be prescribed off-label, and you can't sue doctors directly (35 U.S.C. § 287(c)), and such patents aren't allowed in Europe at all, therapeutic method patents are of limited value.

By: penduluum

penduluum — Thu, 08 Dec 2011 14:34:30 -0800

So if you discover that old drug A can be used to treat disease X, then you can patent a method of treating disease X comprising administering drug A (assuming this use is new and nonobvious). Even if somebody else has a patent on old drug A?

By: Skeptic

Skeptic — Thu, 08 Dec 2011 15:05:08 -0800

Jedicus, since the latest revision of the European Patent Convention it is possible to patent in Europe known compositions for new medical uses (see Art. 54(4) and (5)). In fact, this was already possible in a roundabout way, through the use of contrived "Swiss-type" claims. Medical methods, however, are definitely out of bounds. They are among the "exceptions to patentability" of Art. 53 EPC. These are much harder than the "exclusions" of Art. 52(2) (such as computer programs), because Art. 52(2) is counterbalanced by Art. 52(3) which basically mandates a very narrow interpretation of the "exclusions". There is no such qualifier for the "exceptions".

By: Slackermagee

Slackermagee — Thu, 08 Dec 2011 15:22:02 -0800

By: penduluum

penduluum — Thu, 08 Dec 2011 15:32:23 -0800

Thanks, just curious.

By: tyllwin

tyllwin — Thu, 08 Dec 2011 15:33:44 -0800

It's lovely, for those of us who live in the US, to watch the nation sliding into the toilet by inches.

By: R. Schlock

R. Schlock — Thu, 08 Dec 2011 15:45:15 -0800

It's lovely, for those of us who live in the US, to watch the nation sliding into the toilet by inches. Quick. Patent the yardstick.

By: jedicus

jedicus — Thu, 08 Dec 2011 16:14:14 -0800

since the latest revision of the European Patent Convention it is possible to patent in Europe known compositions for new medical uses Thank you for the correction, Skeptic. Even if somebody else has a patent on old drug A? That's not a problem. If someone has a patent on a widget, you can patent a new invention that uses a widget as a component or a new method for using widgets. Of course, in order to actually use or sell your invention you'd still need a license from the widget-patent owner. And your patent by definition couldn't prevent the widget-patent owner from using or selling widgets, though you could prevent them from using your new invention. This kind of scenario can lead to cross-licenses.

By: T.D. Strange

T.D. Strange — Thu, 08 Dec 2011 16:22:26 -0800

Shit, you can patent the fucking human genome, why not a medical process?

By: Kid Charlemagne

Kid Charlemagne — Thu, 08 Dec 2011 17:28:48 -0800

So using their same reasoning, can I patent eating in response to hunger? If I can, there are going to be a lot of very hungry patent trolls in about a week.

By: jedicus

jedicus — Thu, 08 Dec 2011 18:07:18 -0800

So using their same reasoning, can I patent eating in response to hunger? Depends, was the relationship between food consumption and hunger levels previously known in the art?

By: Dark Messiah

Dark Messiah — Thu, 08 Dec 2011 19:37:47 -0800

Interesting how "you don't need to reinvent the wheel" is an often used expression, and yet we're rapidly headed towards a world where you will have to do exactly that to get anything done.

By: Lord_Pall

Lord_Pall — Thu, 08 Dec 2011 22:01:59 -0800

And now we're first to file. So if this shit is patentable, expect worse.

By: Skeptic

Skeptic — Fri, 09 Dec 2011 00:58:57 -0800

Lord_Pall, what has first-to-file got to do with this?

By: jeffburdges

jeffburdges — Sun, 11 Dec 2011 07:18:08 -0800

groklaw.org : The Depressing Mayo v. Prometheus Oral Argument at the US Supreme Court