Abraham Lincoln wrote that patents, “add the fuel of interest to the passion of genius.”
The Supreme Court of the United States has just doused a lot of that passion – and, along with it, the hopes that personalized medicine (via advanced diagnostics) can become reality sooner rather than later.
Or, as the Wall Street Journal judiciously puts it, “The ruling sparked uncertainty about the booming field of personalized medicine, in which some of the world's largest drug companies are vying to tailor treatments to patients' unique makeups by using diagnostic tests.”
The Supremes have rules that telling doctors of a new scientific discovery and recommending they use it to treat patients is not patentable. Per Justice Stephen Breyer, that’s all Prometheus Laboratories did when it patented a test to help doctors set drug dosages for patients with Crohn's disease. The inventions claimed in the patents "consist of well-understood, routine, conventional activity already engaged in by the scientific community.”
Justice Breyer said the Prometheus patents recited laws of nature connecting the level of certain chemicals in the blood to a thiopurine dosage that is too high or too low. Then, he said, the patent walked doctors through several obvious steps—such as measuring the chemical levels—to turn that natural law into recommendations for particular patients. He rejected the company's contention that, taken together, the steps represented a patentable method for treating patients.
But isn’t that what “intellectual property” is all about?
Justice Breyer emphasized that patent law should not inhibit future innovations by "tying up the future use" of natural laws. He said Prometheus's patent claims "threaten to inhibit the development of more refined treatment recommendations."
But where there is no patent protection there is no investment. And where there is no investment there is no development.
The only people who are going to love this ruling are those who agree with Jamie Love that separating the markets for innovation from the markets for physical goods will ensure that everyone, everywhere, will have access to new medical technologies at marginal costs.
Prometheus Bound is, after all, a Greek tragedy.