The mythical figure, Prometheus, stole fire from Zeus and gave it to mortals. As punishment, he was strapped to a rock and an eagle ate his liver every day, for each day he grew a new liver and was plucked apart by the eagle all over again. It was the punishment that never ends.
Today, the United States Supreme Court handed down a decision that could have long-term negative consequences for innovators. The decision ended a patent dispute between the Mayo Clinic Foundation and Prometheus Laboratories, a Nestle subsidiary that makes and sells a diagnostic test to help doctors observe patient’s response and figure out the correct medication dosage for Crohn’s disease. Mayo’s doctors had previously used the Prometheus test, until they came up with a modified version. Mayo stopped using the Prometheus test and decided it wanted to sell its own version. Prometheus didn’t appreciate the competing business venture and sued. The Court of Appeals for the Federal Circuit, which specializes in patent issues, found Mayo had infringed Prometheus’ patents, but today the Supreme Court disagreed.
The Court’s reasoning in today’s opinion was that no one should be allowed to patent tests that observe the human body’s natural response to illness or treatments. But is it really that sweepingly simple? Imagine, if you will, the many diagnostic tests used to observe patient responses to treatments on a daily basis, and there are indeed many. For example, we use diagnostic tests to measure blood glucose response to medication and to administer workplace drug screens everyday. Other tests, like the PSA for prostate cancer, are used to detect diseases. Now imagine that the makers of these products knew beforehand they could have no intellectual property protection for the years of research and expensive testing they put into developing them. Would we still have the same number of sophisticated and ever-improving tests that we have today?
There is absolutely nothing wrong with an innovator earning money as the reward for creativity, effort and investment. Beyond Prometheus, other innovators who put money and time into developing better tests to support healthcare were not helped by this outcome. This decision may in the short term lower costs for the diagnostic aspect of mass-market healthcare, but in the long run it could slow the process of innovation. Quite simply, the analysis will be: Why put time into developing it if I can’t make money from it?
Unlike the story of Prometheus, the eagle won’t be able to gobble up the innovators’ vitals forever.
- Court throws out Prometheus drug patent (news.yahoo.com)
- Killing Industry: The Supreme Court Blows Mayo v. Prometheus (ipwatchdog.com)