Supreme Court Takes a Look at Medical Patents
What if your doctor couldn’t use scientific research about the drugs she was prescribing to you in order to ensure that you received the proper dosage of medication? What if a doctor had to navigate a complex thicket of procedural patents simply to treat her patients?
Well, according to Tim Lee, the Supreme Court is on the verge of making medical patents a reality, allowing drug companies to not only patent their drugs, but also the way doctors prescribe them to patients:
This should make the nation’s doctors extremely nervous. For two decades, the software industry hasstruggled with the harmful effects of patents on software. In contrast, doctors have traditionally been free to practice medicine without worrying about whether their treatment decisions run afoul of someone’s patent. Now the Supreme Court seems poised to expand patent law into the medical profession, where it’s unlikely to work any better than it has in software.
The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient’s blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical “indicate a need” to raise or lower the drug dosage.
The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn’t act on the patent’s recommendations.
The American Medical Association’s brief on the matter argues that “If claims to exclusive rights over the body’s natural responses to illness and medical treatment are permitted to stand, the result will be a vast thicket of exclusive rights over the use of critical scientific data that
must remain widely available if physicians are to provide sound medical care.”
“Conscientious physicians will be unwilling and unable to avoid considering all relevant scientific information when reviewing test results. Thus, as medical knowledge accumulates, patent licenses increasingly will be required for physicians to conduct even well established diagnostic tests.”
Sounds a bit like the patent trolling we’ve been encountering in the software universe in recent years, as an increasingly bizarre and burgeoning patent system weighs down innovation and stymies growth.
Of course, in medicine the stakes are somewhat higher. Already drug patents give the prescription industry far too much cushioning from competition. Add this to the mix and you create all sorts of bad incentives, lawsuits, and other obstacles to good patient care.