Suppose your doctor measures your body’s response to a medication and then contemplates adjusting your medication accordingly. Did your doctor infringe someone’s patent? Maybe.
This spring, the United States Supreme Court is due to issue an opinion in a patent case that has the potential to allow medical observations to be patented. At issue is Prometheus Laboratories’ patent for a method of optimizing treatment disorders like Crohn’s disease. This case gives the Supreme Court an opportunity to make potentially sweeping pronouncements on the scope of “patentable subject matter,” in other words, what types of inventions qualify for patent protection. If Prometheus’ patents are upheld, the decision could be followed by a flood of patent applications for activities that take place in the health care field on a daily basis.
The broadest claim of Prometheus’ patents define an invention consisting of three steps: (1) administering a specific drug to a patient, (2) measuring the amount of a particular metabolite in the patient’s bloodstream, and (3) considering whether or not to increase subsequent dosages of the drug based on the measurement. The third step is causing controversy.
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