Medical Patents
December 8, 2011 1:36 PM   Subscribe

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.'
posted by jeffburdges (29 comments total) 3 users marked this as a favorite

 
This is beginning to sound like my grandparents talking about Twitter. But, you know, if their ramblings about Twitter became rule of law.
posted by dig_duggler at 1:40 PM on December 8, 2011 [2 favorites]


So it's like software patents, except people will die as a result of this.
posted by mullingitover at 1:41 PM on December 8, 2011 [26 favorites]


But shareholders will coin it in! So that's alright then.
posted by GallonOfAlan at 1:46 PM on December 8, 2011


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.
posted by -harlequin- at 1:47 PM on December 8, 2011 [3 favorites]


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)
posted by delmoi at 1:49 PM on December 8, 2011


I also had the idea that when I am in pain, I need more drugs, so maybe they should be paying ME.
posted by Bunny Ultramod at 1:50 PM on December 8, 2011 [3 favorites]


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!
posted by delmoi at 1:50 PM on December 8, 2011 [2 favorites]


I am glad they are living up to their namesake by staking bold, new territory in the world of hubris.
posted by griphus at 1:50 PM on December 8, 2011 [4 favorites]


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).
posted by exogenous at 1:50 PM on December 8, 2011 [1 favorite]


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.
posted by penduluum at 1:52 PM on December 8, 2011 [1 favorite]


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.
posted by jeffburdges at 1:55 PM on December 8, 2011 [9 favorites]


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?
posted by likeso at 1:56 PM on December 8, 2011


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.
posted by Fezboy! at 2:04 PM on December 8, 2011 [4 favorites]


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.
posted by xedrik at 2:13 PM on December 8, 2011 [2 favorites]


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.
posted by jedicus at 2:19 PM on December 8, 2011


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?
posted by penduluum at 2:34 PM on December 8, 2011


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".
posted by Skeptic at 3:05 PM on December 8, 2011 [2 favorites]


No
posted by Slackermagee at 3:22 PM on December 8, 2011


Thanks, just curious.
posted by penduluum at 3:32 PM on December 8, 2011


It's lovely, for those of us who live in the US, to watch the nation sliding into the toilet by inches.
posted by tyllwin at 3:33 PM on December 8, 2011 [2 favorites]


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.
posted by R. Schlock at 3:45 PM on December 8, 2011 [4 favorites]


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.
posted by jedicus at 4:14 PM on December 8, 2011


Shit, you can patent the fucking human genome, why not a medical process?
posted by T.D. Strange at 4:22 PM on December 8, 2011 [1 favorite]


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.
posted by Kid Charlemagne at 5:28 PM on December 8, 2011


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?
posted by jedicus at 6:07 PM on December 8, 2011 [2 favorites]


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.
posted by Dark Messiah at 7:37 PM on December 8, 2011 [2 favorites]


And now we're first to file. So if this shit is patentable, expect worse.
posted by Lord_Pall at 10:01 PM on December 8, 2011


Lord_Pall, what has first-to-file got to do with this?
posted by Skeptic at 12:58 AM on December 9, 2011




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