Published on Tuesday, March 21, 2006 by the Guardian / UK
Supreme Court to Rule on Patent for Your Thoughts
by Oliver Burkeman

The US supreme court is due to hear arguments in a case today that
could overturn thousands of controversial patents, after a lower
court ruled that doctors could infringe a drug company's ownership
rights "merely by thinking" about the relationship between two
chemicals in the human body.

The case concerns a patent granted in 1990 to scientists at the
University of Colorado and Columbia in New York. They discovered that
high levels of an amino acid, homocysteine, in the blood or urine
tended to be associated with a deficiency of B vitamins. But their
patent does not just relate to the test they invented. It asserts
their ownership of the idea of correlating the two chemicals -
leading to the charge that they have patented a law of nature, rather
than a human invention.

"Unfortunately for the public, the Metabolite case is only one
example of a much broader patent problem in this country," the
bestselling novelist Michael Crichton wrote in the New York Times at
the weekend. "We grant patents at a level of abstraction that is
unwise, and it's gotten us into trouble in the past."

The idea that even thinking about a correlation could infringe a
patent "smacks of thought control, to say nothing of
unenforceability", he added.

Allowing the trend to continue could be disastrous, he warned. "Do
you want to be told by your doctor, 'Oh, nobody studies your disease
any more because the owner of the gene/enzyme/correlation has made it
too expensive to do research'?"

The current dispute began in 1998 after LabCorp, a medical testing
firm, stopped paying royalties to Metabolite Laboratories, which owns
the patent. LabCorp said it had started using a different testing
method for the same correlation, but Metabolite sued and won.

LabCorp was ordered to pay $7.8m (£4.5m) in damages, and is now
asking the supreme court to overturn that judgment.

If the court finds in favour of LabCorp, thousands of patents could
be at risk, including many of those granted in connection with the
human genome.

A number of medical, software and financial companies are supporting
Metabolite as "friends of the court", suggesting that they too see
implications for their businesses if the court rules against the firm.

"The test itself is obvious when you have the correlation. It is the
discovery of the correlation that is the real novelty here," Mark
Lemley, a Stanford University law professor who is helping represent
Metabolite, told the Washington Post.

But a pressure group called Patients Not Patents cited a recent
patent application for "a method of evaluating a risk of occurrence
of a medical condition in a patient, the method comprising: receiving
a patient dataset for the patient; and evaluating the dataset with a
model predictive of the medical condition" - which would, if granted,
have patented the most basic aspects of being a doctor.

Guardian Unlimited © Guardian Newspapers Limited 2006

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