The Supreme Court entered orders denying certiorari in all five cases having petitions on subject matter eligibility, including Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC; Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc., and Berkheimer v. HP Inc.
It can only be concluded that the Court is comfortable with the state of diagnostic method patenting (i.e., it does not exist in the U.S.). There are members of the Court who have expressed skepticism or outright hostility to such claims, fearing that they will inhibit the practice of medicine, as well as statements (some of dubious provenance) that diagnostic methods are unlike pharmaceuticals and don't need patents (mostly from legal academics and economists). Although Bilski was a business method patent case, some of the Justices there seemed unimpressed with method claims more generally, and this prejudice may be affecting their certiorari behavior. And there is the animus many of the Justices have voiced about the Federal Circuit over the past 15-20 years, which may have made the Court less inclined to come to their rescue.
Or maybe the Court believes that this decision (not to decide) will motivate Congress to change the law; after all, in Mayo, Justice Breyer said something along the lines of "if you disagree with us, go to Congress." And genuinely, the Court may be facing up to the reality that, even if its concerns are real, the Justices don't have a solution to the problem, in which case Congress is the only answer.
What needs to be done (although it won't be) is for the PTO and courts to distinguish in individual cases the application of the Mayo/Alice cases to come to a determination of patent eligibility. The Court can speak in generalities all it wants, but if pressed by advocates who point out the economic consequences of the recent jurisprudence there is a chance the Court will moderate its views. After all, the Court certainly does not want the business section of the Wall Street Journal to run the headline "Supreme Court Destroys U.S. Industry, Public at Risk, Healthcare Costs Sure to Rise."
On the bright side, by denying cert. in Vanda, the Court kept alive the glimmer of hope that there is a way to draft enforceable claims related to diagnostics leading to real world therapeutic interventions, as well as in Berkheimer, which increases the burden on patent challengers and may inhibit plenary dismissal on eligibility grounds.
And in view of the Court's denial of certiorari in Regents of the University of Minnesota v. LSI Corp., maybe the Court believes that the other petitioners have more compelling interests in the Court's disposition of their cases than patentees have. This sentiment would not be inconsistent with the Court's views on patent law enunciated in many cases over the past decade.
