Friday, December 09, 2011

Prometheus: loophole highwaymen waiting to waylay?

In Supreme Court Takes a Look at Medical Patents, Forbes takes a harsh view of the Prometheus position. See also the ariticle Medical Patents Before Court at the Wall Street Journal.

The New York Times discussed the government's "middle position":

“Each party in this case has got a valid point,” said Donald B. Verrilli Jr., the solicitor general. “Mayo is correct that you can’t get a patent by tacking a mental step onto an utterly conventional process for administering drugs and testing their effects.”

Still, Mr. Verrilli said, the Prometheus method was eligible to be patented as an initial matter but could then probably be challenged as invalid because it was obvious and insufficiently novel.

Mr. Shapiro said that was the wrong approach, urging the justices to adopt a robust threshold test to protect the public domain. “It’s the critical test defining what’s in the storehouse of information for medical researchers to use,” Mr. Shapiro said of the initial test for patentable inventions.

The Times also noted: Prometheus waited until Tuesday to tell the court that it had been purchased by Nestlé in July.


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