Wednesday, September 28, 2011

Organism Transformation? At Patent Docs Kevin E. Noonan has a Piece on Deciphering the Patent-Eligibility Message in Prometheus, Myriad and Classen

The medical patient ran out of the diagnostic chambers of the patent monopolist, gesticulating wildly, pointing to her body and exclaiming loudly to all who were willing to listen :

"It was Prometheus, Prometheus, I tell you. I have been transformed, I have been transformed!"

Hmmm. Is that right?

Kevin E. Noonan at Patent Docs has a nice, complex piece on Deciphering the Patent-Eligibility Message in Prometheus, Myriad and Classen and make sure you read the comments there for a representative glimpse of the patent morass in action, there presented as farflung differing opinions on what should be a simple subject, namely: what can be patented -- and what can not be patented. Simple enough.

Whatever the applicable patent rule is or should be, it can not be so Biblically long that it can not be practicably applied, nor can a clear rule lead to so many wayward opinions among those who should know the simple rule.

What had Prometheus done to the poor patient? My goodness, we hope it is reversible!

We were of the impression after the U.S. Supreme Court decision in Bilski that a claimed INVENTION, to avoid being branded an "abstract idea", had to involve a machine or a transformation  -- that transformation applying to the invention itself, and not meaning the "first blush" impact or effect of an alleged invention on the surrounding world outside of the invention.

Where -- we ask -- in any U.S. Supreme Court decision -- is there ANY indication that the Bilski transformation test applies to the "effect" of any purported invention on the biological state of a human organism -- and, we ask -- if that WERE the rule, which we doubt -- since a joke can greatly alter that biological state by inducing laughter, which in turn can be accompanied by all kinds of PHYSICAL changes (e.g. blushing), can a joke be patented?

Just imagine being sued for IP infringement for telling "somebody else's joke".

Is the kind of "transformation" that the Supreme Court was talking about in Bilski just your plain old hormone blush?

Does ANY medical diagnostic test EVER "transform" the human organism?

What about the nature of the diagnostics? Does a needle have to be inserted and/or does a violation or penetration of the human organism have to occur PHYSICALLY for an "inventive" Bilski "transformation" to occur. And does such a transformation have to be permanent or can it be reversible?

The Federal Circuit said in its serendipity decision that the administration of a medical test and measure of human metabolites in the body were enough to satisfy a "transformation" and to grant monopoly powers to that "biological effect". 

Did the Supreme Court ever make mention of that particular transformation in Bilski? Not to our knowledge.

It seems to us that the human organism is not "transformed" by diagnostic tests. Rather, such diagnostic tests merely utilize the human organism's NATURAL biological responses to obtain a diagnostic result. The alleged "transformation" is simply a biological response, nothing more.

Such a biological response does not entitle any diagnostic test to claim a monopoly on the way that the human organism reacts to ANY test. Patents were not brought to life in the law to grant monopolies on natural biological responses, but rather were created to protect INVENTIONS.

An example here would be glucose test strips for diabetes.

It would seem to us that it makes sense that an inventor can patent a new-fangled test strip that tests for diabetes, but that such an inventor can not claim a monopoly on blood testing for diabetes by test strips.

That is, however, in essence what Prometheus is trying to do for its metabolite measurement system. They are not claiming a patent on their physical test apparatus, an apparatus that represents the required physical transformation from the IDEA FOR THE APPARATUS to the actual creation of THE PHYSICAL TEST APPARATUS -- rather, they are claiming a monopoly on the human reaction that their apparatus is testing, and that is wrong.

After all, and by definition, ANY diagnostic test measures some kind of status or change from the normal in a human organism.

THAT biological response or change is not the transformation required by the U.S. Supreme Court decision in Bilski.

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