If you like software patents (and you shouldn’t) you’re going to love this exciting new frontier in process patents that the Supreme Court seems poised to legitimize – health care treatment process patents. As Tim Lee explains, what’s at issue in the exciting case of Prometheus Labs v Mayo Clinic is not a drug (which was patented, but then the patent expired year ago) but “the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient’s blood” based on the insight “that particular levels of the chemical ‘indicate a need’ to raise or lower the drug dosage.”
Basically, Prometheus wants to patent a scientific correlation. I don’t want to get too bombastic about this, but essentially all of the past 400 or so years’ worth of human progress would have been severely retarded by the widespread application of this kind of thing. Any set of new class of products is inevitably associated with a lot of “ideas about how to use the product effectively.” Glenn Reynolds could have shut down Atrios on the grounds that he invented short link-heavy blogging about public affairs, or Brad DeLong could have shut me down for poaching his idea of using FRED to generate illustrative charts for blog posts. This is going to end up further raising costs and slowing innovation in health care, but once the entire medical-industrial complex is bogged down in endless smartphone-esque circular patent litigation we may end up eliminating some of the current loan debt problems afflicting law school graduates.