According to author Michael Crichton, writing in last Sunday’s New York Times, the statement, “Elevated homocysteine is linked to B-12 deficiency, so doctors should test homocysteine levels to see whether the patient needs vitamins” is not in the public domain; “A corporation has patented that fact, and demands a royalty for its use. Anyone who makes the fact public and encourages doctors to test for the condition and treat it can be sued for royalty fees. Any doctor who reads a patient’s test results and even thinks of vitamin deficiency infringes the patent. A federal circuit court held that mere thinking violates the patent.” The Supreme Court will soon have a chance to determine whether this is all as crazy as it sounds, or should remain so (“This Essay Breaks the Law”, Mar. 19). More: “B vitamin case reaches Supreme Court”, AP/USA Today, Mar. 20; Tony Mauro, “Supreme Court Tackles Patentability of Scientific Phenomena”, Legal Times, Mar. 22; Lattman, Mar. 21 and Mar. 22; Point of Law, Mar. 25. Update: Court decides not to resolve case (Tony Mauro, Legal Times, Jun. 23).
Medical wisdom patentable?
According to author Michael Crichton, writing in last Sunday’s New York Times, the statement, “Elevated homocysteine is linked to B-12 deficiency, so doctors should test homocysteine levels to see whether the patient needs vitamins” is not in the public domain; “A corporation has patented that fact, and demands a royalty for its use. Anyone who […]
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Ironies of the Times
Jonathan at his blog notes that the New York Times’ editorialists nod their approval at patent reform, but not class action reform, even though the two kinds of reform share many similarities in their aim to curb baseless litigation. Could…
The NY Times author mucks up the facts a bit. You can’t get a remedy for suing a medical practitioner for infringing a method patent related to a medical procedure. (See 35 USC 287(c)(1)). Therefore, while he certainly infringes, there will be NO remedy available against the Dr under the current law.
You can get an infringement action and a remedy for inducement or contributory infringement from the publishing companies though. Just thought I’d focus this issue a bit.