I wrote here about the Mayo v. Prometheus case, which dealt with patents on the use of thiopurines for autoimmune therapy. But the patents didn’t claim any thiopurine drugs themselves. Or their specific use for autoimmune therapy. Or vehicles to administer them in, or methods for their manufacture, or techniques to package them. Nothing as reasonable as any of that.
No, these patents broke new ground. The problem is, the thiopurines are metabolized rather quickly, and to different degrees in different patients. That can make it tricky to know if someone’s getting the right dosage – too much is bad, too little is bad. The Prometheus patents comprise these steps:
1. Telling a doctor to administer the drug to a patient.
2. Telling the doctor to measure the metabolite levels in their blood after dosing.
3. Describing the upper and lower acceptable bounds for these metabolites, and telling the doctor that these indicate a need to raise or lower the dosage.
There! That wasn’t so good now, was it? I railed against this ridiculous idea at the time, which is tantamount to trying to patent the entire practice of medicine, step by step. (I know! I’ll patent the idea of having a hypothesis, testing it by experiments where I manipulate individual variables, and then revising my hypothesis for the next round based on the results! Step three: profit!)
Fortunately for everyone’s sanity, the Supreme Court has put the brakes on this stuff. Here comes the voice of reason:
Because the laws of nature recited by Prometheus’ patent claims—the relationships between concentrations of certain metabolites in the blood and the likelihood that a thiopurine drug dosage will prove ineffective or cause harm—are not themselves patentable, the claimed processes are not patentable unless they have additional features that provide practical assurance that the processes are genuine applications of those laws rather than drafting efforts designed to monopolize the correlations. . .
. . .This Court has repeatedly emphasized a concern that patent law not inhibit future discovery by improperly tying up the use of laws of nature and the like. See, e.g., Benson, 409 U. S., at 67, 68. Rewarding with patents those who discover laws of nature might encourage their discovery. But because those laws and principles are “the basic tools of scientific and technological work,” id., at 67, there is a danger that granting patents that tie up their use will inhibit future innovation, a danger that becomes acute when a patented process is no more than a general instruction to “apply the natural law,” or otherwise forecloses more future invention than the underlying discovery could reasonably justify. . .
Yes, yes, yes. This is Justice Breyer’s opinion for the unanimous court (he asked the most questions during the oral arguments), and it’s absolutely correct and a great pleasure to read. Let’s hope we see no more of this nonsense. (Which means, I guess, that we’ll just move on to fresh nonsense instead, but patent law is ever fruitful).