Don't think citizen, you may have to pay royalties!

March 19, 2006 4:02 PM

Today SCOTUS will hear a case to decide the scope of what can and cannot be patented. At the heart of this case lies the decision about whether a patent can validly include a step of ‘correlating a test result’ that arguably monopolises a basic scientific relationship used in medical treatment ‘such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result.’ If as expected the court uses this as an opportunity to reign in the scope of what can be patented this will surely be a victory for common sense.
posted by bap98189 (18 comments total)

I was not aware that SCOTUS met on Sunday. I thought the Scalia/lito brigade were a bunch of near-fundamentalist christians, and would think that they'd take the Lord's Day as a day of rest and religiosity.

For the record, I'm not looking forward to many victories for common sense under the Roberts Court.
posted by illovich at 4:12 PM on March 19, 2006

You weren't supposed to read this post until this coming Tuesday, illovich.
posted by mr_crash_davis at 4:53 PM on March 19, 2006

illovich, why the knee-jerk reaction about the impossibility of common sense decisions under Roberts? If the recent rulings are any indication, your allegations are completely without merit.
posted by Pontius Pilate at 5:26 PM on March 19, 2006

Metafilter: completely without merit
posted by Mick at 5:37 PM on March 19, 2006

OK EVERYONE, THREAD COMMENTS RE-START

now!
posted by rxrfrx at 6:14 PM on March 19, 2006

I have to say I agre with illovich. There is little that this administration and it's appointees havent't fucked up, and even less that had anything whatsoever to do with common sense.
But, to be optimistic - I suppose there's a first time for everything.
posted by bashos_frog at 6:34 PM on March 19, 2006

Two observations:
1. SCOTUS is hopelessly incompetent to adjudicate patent cases, which are litigated by lawyers with PhDs in things like biochemical engineering. This invariably leads to poorly reasoned opinions drafted and edited by clerks who are way out of their league - or, more likely, an opinion chock full of broad dicta that throws intellectual property law in complete disarray.
2. This is a statutory, not a constitutional issue. Therefore Congress can easily give the finger to an unwelcome decision by amending the Patent Act to make it, well, more evil.
posted by Saucy Intruder at 7:03 PM on March 19, 2006

Saucy, I think I would go even further and say that SCOTUS is hopelessly incompetent to adjudicate most cases that involve technology -see, for example, National Cable & Telecommunications Association v. Brand X. Scalia's dissent was the only part of the opinion that appeared to exhibit a good grasp of the technological issues involved.

That being said, I still think that illovich's remarks paint the Roberts Court with too wide a brush. It's one thing to restrict your criticism to a small sub-field of Court cases; it's quite another to suggest that because Roberts was appointed by Bush, everything he touches will shrivel and die.
posted by Pontius Pilate at 7:10 PM on March 19, 2006

I hope it's not too late for...

Metafilter: shrivel and die.
posted by Richard Daly at 8:29 PM on March 19, 2006

it's quite another to suggest that because Roberts was appointed by Bush, everything he touches will shrivel and die.

You are correct, sir: correlation != causation.

But have you noticed exactly how strong the correlation is?
Pretty damn scary.
posted by bashos_frog at 3:53 AM on March 20, 2006

illovich, why the knee-jerk reaction about the impossibility of common sense decisions under Roberts?

It's not a knee-jerk reaction. It was a snarky comment that reflects my distrust of "strict constructionist" views of Constitutional law, my fear of the conservatism at all costs extremism of Thomas (the Establishment clause doesn't prohibit States from establishing State religions? Really?) my disgust at the overt Racism in Alito's past, etc., etc., etc.

Of course there will be some decisions I agree with, after all it's not as though SCOTUS is made up of aliens that I have nothing in common with.

But I also fear that this Court will be most interested in rolling back individual liberties at the benefit of the Government and Industry. I am not confident that they will support privacy, protections for employees, environmental regulations--and I am almost sure that they will ultimately greenlight some version of South Dakota's abotion illegalization bill.

your allegations are completely without merit.

Boy, now who has a knee jerk reaction?
posted by illovich at 6:39 AM on March 20, 2006

bap98189 is listed as being in the UK. That means this was posted at 23:02 on 03/19.
If he, for whatever reason, is anywhere else in Europe (except Ireland), then this was posted at 00:02 on 03/20. Which is Monday.

So it very well may be that SCOTUS is discussing this today. Depends what side of the channel bap98189 is on.
posted by Bugbread at 6:47 AM on March 20, 2006

an opportunity to reign in the scope

Argh, rein in, rein[2] in. Boy, when it reigns, it poors.
posted by purple_frogs at 10:41 AM on March 20, 2006

According to the Court's argument calendar (pdf), this case is not scheduled for oral arguments until Tuesday, 3/21 (see Laboratory Corp. v. Metabolite Laboratories). So unless bap98189 has a time machine, nope, it's not today.
posted by Pontius Pilate at 11:36 AM on March 20, 2006

Ah, cheers.
posted by Bugbread at 11:57 AM on March 20, 2006

FWIW, this is the claim in question:

"13. A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of:

assaying a body fluid for an elevated level of total homocysteine; and

correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate. "

Now look at it very closely.
What people like Michael Crichton consistently fail to appreciate is that you need to work every single element in a claim in order to infringe on it. Therefore, you cannot infringe this claim merely by thinking of something, like Crichton wants to have us believe. You also need to do the assaying part. And this is where the chances that I or you or most people on this list will ever infringe on this claim drop to nearly 0%.

There are other reasons why this claim perhaps should not be upheld, e.g. the fact that it describes a diagnostic method performed by doctors, and we should ponder very carefully whether we want to stop doctors from using this particular method. However, the fact that it contains, among several steps, one step that can be performed by the mind (but also by a computer, as the case may be) is not one of them.
posted by sour cream at 12:10 PM on March 20, 2006

actually, "correlating" is an act of thought, isn't it? I mean, let's say I assay a body fluid for an elevated level of total homocysteine. And let's say there's twenty different things that an elevated level of total homocysteine might indicate.

If I think "of those twenty different things, one possibility is a deficiency of cobalamin, and another is a deficiency of folate", well, I've just correlated it.

Now, if this patent used a specific method to check the body fluid, a novel new mechanism, then I'd say "great, grant the patent!" but this is no better than a patent for "assaying the oil drained from a car for bits of metal shavings, and correlating the bits of metal shavings with a deficiency in lubrication." Without a novel way of "assaying", this is without merit.
posted by davejay at 2:25 PM on March 20, 2006

davejay, I think what you are saying is that the invention is obvious and therefore shouldn't have been granted. I don't know enough about cobalamin and how it relates to homocysteine levels to have an opinion on this (i.e. whether the invention is obvious or not), but even if you're right, then this is very different from saying that it shouldn't be granted because one of the steps is a step of "correlating" two things.

There are probably thousands of patents out there involving such a step of correlation. Should they all be invalid? Just because they involve a single step that can be carried out by the human mind? Then what about all those methods involving a step of determining, adding, or calculating something? All invalid because they're acts of thought, is that what you're saying?
posted by sour cream at 3:10 PM on March 20, 2006