

The Depressing Mayo v. Prometheus Oral Argument at the US Supreme Court - Natsu
http://www.groklaw.net/article.php?story=20111210181900395

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saulrh
Last time an article about this came up, it was argued that we should be
assuming that the justices know what they're doing. They are the supreme
court, after all, so they probably understand the patents they're ruling on
and the results of their rulings. This article demonstrates that we can't make
that assumption:

    
    
      He was stunningly interrupted by the rookie Justice on the
      far left seat, Justice Sotomayor. It was stunning since she
      sounded so off-base. She asked about the “actual machine.”
      In an argument about treatment, knowledge and diagnosis,
      where neither the drug or the blood testing were at issue,
      “machine” sounded uninformed. Our reporter looked down. He
      was embarrassed for the Justice.

~~~
einhverfr
What one hopes is that they _might_ have clerks who can help them with these
things. In general the Supreme Court justices themselves are not people I
would choose to look to for gurus on technology.

~~~
jerrya
While all justices have been attorneys, there is no constitutional requirement
that a justice be an attorney, and not a doctor/scientist/business man.

Since justices do rely on clerks, it's not clear to me that an accomplished
anything other than a judge could not be brought up to speed on the law.

It is a shame that the justices seem to avoid each other and do not appear to
work in a team. Imagine a team of justices that could rely on one being an MD,
one being a civil engineer, one being an entrepreneur that could lead/organize
tutorial sessions for the others.

Many of the current justices don't even have courtroom experience.

~~~
einhverfr
I think it would be great if we had at least one non-lawyer on the Supreme
Court. It would lead to opinions that more people could easily read. Alas, few
people agree with me (and none of them in the legal profession, wonder
why....)

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lotu
It's because lawyers understand how very, very, very bad things can get when
you put people without an intimate understanding of the functioning of the law
in-charge of overseeing it. Using lawyers is just very bad.

~~~
willyt
What do you mean by very very very bad? Could you give an example.

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einhverfr
Well, for starters, they might just start saying "see below" instead of
"infra" and "see above" instead of "supra." Thus is the whole system
unravelled.

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aprescott
I think this was one of the most interesting parts of the article:

 _The other question that made sense was from Chief Justice Roberts:_

 _CHIEF JUSTICE ROBERTS: So I have a great idea. You take wood, you put it on
a grate, you light it, and you get heat. That recites a series of acts
performed in the physical world that transforms the subject of the process,
the wood, to achieve a useful result, which is heat. So I can get a patent for
that?_

 _Believe it or not, the answer was no, not because it's not patentable
subject matter, but because it's not novel. So cavemen entrepreneurs could
have patented it?_

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wisty
Is it really so terrible? What if you found that some orphan drug could be
used for something that nobody had thought of, after the patent expired? You'd
need to spend a lot of money testing it, to get it approved, otherwise no-one
could use it. You didn't spend a few million developing the compound, but you
did spend a few _hundred_ million testing it. Surely drug patents exist to
encourage drug companies to _test_ drugs, and bring them to market, not just
to create the initial compounds.

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einhverfr
We need Congress to act and engage in compulsatory licensing for all patents
in all medical devices and drugs. This would fix the problem quickly.
Otherwise we have cases like this, and patent law does nothing but increase
costs for everyone by entrenching monopolies in these fields.

~~~
nitrogen
Compulsory licensing for bogus patents would only encourage more of them to be
filed for the "free" money. We need to stop this problem at the source.

~~~
einhverfr
We can tighten up patent criteria as well.

But the point is.... if any medical device could license any patent (doesn't
matter what patent it is) for no more than 5% of manufacturer->distributor
sales price, there would still be reason to fight bogus patents, but prices
would drop because you'd only get 5% of manufacturing royalties for 20 years,
not 20 years of monopoly rights.

~~~
nitrogen
Ok. Is that 5% allocated to all patents? 5% per patent? If the latter, 20
patents would be enough to own the entire revenues for a device. Manufacturers
would have incentive to remove as much functionality as possible from each
device (to minimize patent coverage), requiring doctors to purchase more
separate equipment to get all the features they need. In the case of an
abstract diagnostic method patent, patent owners would split diagnostics into
as many patents as possible to get as many 5% chunks as they can.

~~~
einhverfr
Most drugs have to license 1-2 patents at most.

If you get rid of software patents, this problem becomes quite manageable in
the medical world.

