
Oblivious Supreme Court poised to legalize medical patents - evo_9
http://arstechnica.com/tech-policy/news/2011/12/oblivious-supreme-court-poised-to-legalize-medical-patents.ars
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shadowfiend
This is an extremely foolish title, and the tone of the article is likewise
foolish. It's highly unlikely the Supreme Court has not read the amicus
briefs, and almost impossible that they will not before passing judgement.
These are not 9 people picked off the street and thrown on the bench to judge
what the application of law is, and they don't mess around. Reading pretty
much any Supreme Court decision will show you how intelligent these nine
justices are.

It's popular to condemn the Supreme Court's decisions if you disagree with
them, and it seems equally popular to blame them on the Supreme Court's
fundamental misunderstanding of <x>. I'm not saying the SCotUS is
flawless—hardly, they are made up of people—but it would behoove authors and
readers if you started from the base assumption that you are dealing with
brilliant jurists. Indeed, that is how lawyers have to prepare.

The lawyers arguing against the patent were likely aware both of the justices'
intelligence and their general interpretations of patent law, therefore chose
not to tread the path of invalidating medical patents in general. The
questions asked by the justices were fair. Not expressing skepticism does not
mean there is no skepticism, for one. We don't find that out until the
decisions are written.

Whether this was a case where someone should have gone after medical patents
in general is up for debate. In particular, it seems unlikely that the Mayo
clinic, which probably has its own medical patents, would try to invalidate
the concept itself.

If you read some more of the questions and interactions, you'll see that the
Supreme Court seems anything but oblivious: they're trying to probe what
should and should not be patentable in a field that involves actions and
reactions that are all based in chemical fact. If neither they nor the lawyers
can provide a satisfactory test to determine this, then all they can do is
decide the specifics of this case.

True change in this area really is something where the Court can only do so
much. The definitions of patents in general are determined by Congress and its
laws. If we want to change them, we have to focus there. SCotUS has merely
become our backup because it's been relatively difficult, particularly in the
last 40 years or so, to convince Congress to pass laws that are potentially
damaging in any way to the bottom lines of businesses.

~~~
buff-a
"Reading pretty much any Supreme Court decision will show you how intelligent
these nine justices are."

Not saying they aren't intelligent. But they might be intelligent enough to
have their wives take hundreds of thousands of dollars in lobbying money
directly related to the cases before them and get away with it. So, not their
intelligence I'm worried about. Its their ethics and morality.

~~~
shadowfiend
Well, a few thoughts. I haven't looked into this in detail, of course, but
some general ones: \- In this particular case, the issue in question was that
one justice's wife (Justice Breyer) owned stock in Nestlé, which acquired
Prometheus Laboratories, one of the parties in the case, this year. This fact
seems to have come out during the case, and the justice's wife ultimately sold
her stock before the case began. Nestlé has pretty powerful brand recognition,
so it seems silly to read foul play in that particular interaction. Asking
justices to never engage in stock trade and, worse, never allow their families
to do so, just in case a situation like this should arise, would be somewhat
foolish. We rely instead on disclosure of interests and the ability to recuse
oneself if a justice chooses not to clear a conflict of interest. \- I don't
know of too many _financial_ conflicts that have arisen in the court,
particularly recently, that haven't been solved either by something like the
above or by recusal. \- It's possible you're referring to the issues regarding
the healthcare law and the fact that Justice Thomas's wife has campaigned
against it. If so, I'd like to see the evidence that she has taken “hundreds
of thousands of dollars in lobbying money”. I'm not saying it hasn't happened,
just that I haven't seen anyone mention money changing hands—people are
mentioning a potential conflict of interest that she's advocating against it,
but that's a different matter entirely.

~~~
buff-a
[http://www.huffingtonpost.com/2011/11/18/clarence-thomas-
eth...](http://www.huffingtonpost.com/2011/11/18/clarence-thomas-ethics-
louise-slaughter-letter_n_1101854.html)

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acslater00
Honestly, this is probably the best possible thing.

The reality is that under the Patent Act, things which are not fundamentally
"inventions" -- such as software algorithms, genes, and in this case, data
correlations -- can legally be granted patents. This is a problem with the
Act, not with any given court's interpretation of it, and that is what needs
to change.

I can think of no better way to build political support for a major patent
reform initiative than a constant stream of human-interest pieces on 60
Minutes where a handsome doctor earnestly explains that he couldn't save Bobby
because of a patent claim from some faceless corporate troll.

Software is abstract and complicated. Saving Bobby is emotional and simple. If
patents start to impact medicine the way they've impacted software
development, they're not going to last very long in their current form.

~~~
pvarangot
I don't believe these things work the way you are assuming they do. Unjust
behavior by the part of big corporations like Prometheus need to be stopped at
the root and at first sight.

Please never hope that the triumph of someone over you in argument, specially
one that that gives them a new weapon to fight you, will eventually and
reliably become a weakness in their defenses.

I'll try to explain why I think so without using analogies, since they almost
always break arguments apart. I hope that by sticking to this particular case
I am not interpreted as someone trying to straightly so predict the future but
as someone making a point.

Let's say that Prometheus wins this, thus having the possibility of using this
case to patent medical procedures and the using of statistical correlations.
You are assuming that big pharmaceuticals will use this to stop lots of
doctors from rightfully saving lives using what is now standard medical
procedure... but I believe big pharmaceuticals are doing just fine now, and
are not stupid enough to piss off the whole US population. What I would do if
I were them is to extend the validity of the patent on a drug (in the case
describe in the article it is thiopurine) by using another related patent that
hasn't expired yet and that covers a procedure. This won't send a
substantially higher number of Bobbys to the grave, but it won't reduce the
cost of each non-dying Bobby to not-die, which is what one supposes eventually
happens when patents on a Bobby-death-stopping drug expires and hence the drug
can be manufactured generically or by competing big pharmaceutical labs.

So, in the end they get to make more money in the long run (since patents can
be made to last longer) and things don't get worse for Bobby and the people,
they just don't get as better as they should.

~~~
Duff
I agree with you whole-heartedly on these patents. But... I think the point
that you're missing is that the Supreme Court is like a meta-court. You don't
go there to appeal your case, you go there to appeal specific decisions and
interpretations of the law.

IMO, from a lawyers vantage point, what is the difference between a patent
covering a software method (like encoding music) and a medical procedure?
There really isn't any. Both are equally offensive to the folks who practice
in these fields -- I have yet to meet a programmer in favor of software
patents, and I'm sure doctors will feel the same way.

The problem is that the law as written is that software patents ARE ok. As
long as that is true, how could any judge make a case that medical procedures
are not?

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marshray
I wonder if they would consider CPR to be patentable.

Truly Dr. Heimlich missed an opportunity when he failed to patent his
"trademark" maneuver.

In the future, perhaps we'll be expected to wear bracelets (or microchips)
that tell the paramedics on which life-saving techniques we're up-to-date on
our licensing payments.

~~~
joshAg
I think it's more reasonable that doctors or health care providers or health
insurance companies will be the ones that actually have to license any patents
because that's where the money is. It's not like consumers need to keep a
bracelet or file of all the patents they've licensed so they know which
software and hardware they can buy.

Can you imagine not being able to get a cast because your hmo didn't license
the patent for "applying gauze soaked in plaster to a broken or fractured limb
to prevent the bone from moving while it heals"? crap.

~~~
einhverfr
Here's a good example though. Serafem is basically prosac, but it's approved
for treating severe PMS basically. They license the patent for that
correlation from MIT.

A doctor prescribing generic prosac instead would then be violating MIT's
patent.

Unfortunately here medical patents are already here. I don't think the Supreme
Court is going to switch course either. What we really need is for Congress to
act and impose compulsatory licensing on all patents if the end technology is
a medical one. This is also what is needed to bring medical costs down in this
country. Unfortunately Congress is in the hands of big business so they will
probably run the other direction....

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jm4
The Supreme Court does not "legalize" anything. They interpret existing laws
and decide on their legality. They can't shoot it down just because it sucks.
Their decision is based on whether or not the law runs afoul of the
Constitution. Don't like the law? Blame the a-holes who wrote it. Better yet,
try to get it changed.

~~~
scarmig
It's very... sanguine of you to think the Supreme Court is full of bloodless
rationalists, computers that read statutes and, via sheer force of deductive
reasoning, come to a conclusion.

In reality, the Supreme Court is supremely political, and they regularly do
shoot down a law because they think it sucks or approve a law because shooting
it down would make people angry.

~~~
waterlesscloud
Please provide examples of both assertions.

~~~
scarmig
It's not striking down a law, but you can see the process at work most clearly
in Bush v. Gore. It was, on the face of it, a horrible decision, and the court
itself said it shouldn't be used for any precedent; it's not been cited once
since then.

But it isn't merely a matter of disagreeing with the decision. It's the crass
politicization of it. If you look at the breakdown of the vote, the Justices
who supported Bush supported Bush, and those who supported Gore supported
Gore. (Thomas's wife was heavily involved in Bush's campaign, and O'Conner had
said the evening before the election that she'd find Gore's election
personally disastrous.)

Nor can ideology account for the decision: the same justices who are pretty
stingy when it comes to applying Fourteenth Amendment rights generally
suddenly found it imperative to extend it to a radically new situation in an
usurpation of state rights with federal judicial might. The converse was also
true, as the Justices usually distrustful of states running their own
elections suddenly thought that sacrosanct.

Edited to add a particularly damning quote:

"The counting of votes that are of questionable legality does in my view
threaten irreparable harm to petitioner Bush, and to the country, by casting a
cloud upon what he claims to be the legitimacy of his election. Count first,
and rule upon legality afterwards, is not a recipe for producing election
results that have the public acceptance democratic stability requires." IOW,
Scalia is banning the recounting of the votes of undecided legality because it
might make Bush's election look less legitimate and cause political turmoil.

~~~
rayiner
> It's not striking down a law, but you can see the process at work most
> clearly in Bush v. Gore. It was, on the face of it, a horrible decision, and
> the court itself said it shouldn't be used for any precedent; it's not been
> cited once since then

Bush v. Gore is like a once in history Constitutional crisis. It's not
representative.

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alexholehouse
Would this not fundamentally break healthcare?

~~~
mindcrime
Is healthcare not already fundamentally broken?

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austenallred
I just hope medical patents are as easy to patent as some technical patents.
That way I'll snake the "cure for cancer" patent right now and then troll
anyone who tries to use it later.

I have no problem with patents if you are patenting an actual, working, viable
product, when when you can patent an "idea" the entire purpose of a patent
turns into a market full of arbitrage.

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Mediocrity
At this point I might just change careers.

Lawyer sounds like a pretty good gig right now.

~~~
wtn
You might be interested to hear about the Ticketmaster class action settlement
I learned I was a party to in my email this morning.

Lawyers get $16 million, members of the class get coupons on future
Ticketmaster purchases.

~~~
leot
It's amazing that so many entrepreneurs seem to hate the large payments that
class action lawyers are awarded.

Class action lawyers perform the same kind of high-risk high-reward gamble
that startups engage in. While tech startups create value by making something
useful, these lawyers create value by keeping powerful interests honest. The
idea that they are unnecessary or should be capped because consumers will just
"in the long run" "vote with their feet" has been shown to be (patently)
false: corporations can take advantage of huge economies of scale when they
breach millions of contracts in small, hidden ways. The only real recourse of
an individual is to participate in a class action. Perhaps the biggest part of
the individual's reward is that the corporation will stop its bad behavior.

I can understand distrust of the judicial system because it shows a bias in
favor of the deep-pocketed. What I don't understand is why there's a distrust
of class-action verdicts, where both parties compete on a relatively even
playing field.

~~~
_delirium
I think the main source of dislike is that the lawyers appear to be the _only_
ones profiting: they receive substantial payouts, the lead plaintiffs they
talk to receive payments, but the bulk of the class they supposedly represent
receives worthless coupons. The _suspicion_ is that they're negotiating
primarily for themselves, willing to sell out the class with a shitty
settlement, as long as they themselves get a good payout from it.

I've been reasonably happy with class-action lawyers when they've negotiated
actual, non-trivial cash-money payments for their class. But Ticketmaster
store credit, so they can take home money while failing to get anything for
the class they supposedly represent? Fuck off. I filed an objection to the
proposed settlement when I received that offensive proposal. If all they can
negotiate is $1.50 in store credit, then I think we can safely say that they
failed in their lawsuit, and shouldn't get any payment.

~~~
leot
Sounds like a problem of the selection of legal representation. It seems there
needs to be some, ah, website that helps to put together groups of plaintiffs
and organizes the process of selecting a good legal team to represent them ...

... if the website got 0.25% of every settlement, it could be pretty
lucrative.

~~~
drewcrawford
As I understand it (IANAL) the vast majority of members of the class find out
during the settlement process, i.e. well AFTER the lawyers have been picked.

You can technically "opt out" and go sue the company yourself, but you're not
going to get people who realistically, upon receiving notice that they are
getting an unexpected settlement in-between two utility bills, decide to form
their own class.

~~~
leot
Right. The point would to allow this kind of thing to happen more organically.
Those with a grievance would aggregate _before_ the legal team was chosen.

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sycren
I hope they don't try to include something like this in ACTA to bring it
across to the EU

~~~
jacques_chester
Countries with universal health systems might be more resistant due to the
immediate and visible cost to the respective Treasuries.

