Posts Tagged: "medical processes"

We’ve found an intriguing assortment of innovations in medical and industrial fields, and even the video game industry, coming out of these academic institutions. The featured patent application for today’s column would protect a system of better capturing video game player motion for physical activities required of games. This system would make it harder for users to cheat these games and complete tasks without completing the physical motion the game asks users to perform. Other patent applications we discovered include better systems of creating useful stem cells and a more effective topical formula for acne treatment.

We noticed a great deal of patent applications and issued patents pertaining to medical technologies. Today, we feature one application that discusses an improved system for detecting the location of surgical instruments during a medical procedure. This improvement over image-guided surgery, which relies on video feeds from surgical instruments, informs medical professionals of the exact location of an instrument within a patient. We also look at an application for an improved pulse oximeter that provides a higher degree of portability over current devices, which are largely tethered to hospital settings. We also look at applications discussing systems of predicting cloud movement and an eco-friendly dishwasher that cuts down on current water and energy usage by half. A number of medical patents have also been issued recently to General Electric from the USPTO. Of the ones we noticed, we feature a trio of patents that protect more accurate systems of completing a medical transaction through billing software, improved predictive models for identifying risks of age-related disease and a more accurate pulse oximeter for the finger. Other patents give GE the right to protect smart home energy usage systems and improved analysis of natural gas streams to determine levels of moisture.

The medical research university is heavily involved with developments for medical diagnostics, as many of the following applications show. One patent application describes a system of searching for similar images within a medical imaging database to aid in diagnosing issues. Another patent application would protect a system of developing a personalized library of tumor development indicators for cancer patients to determine if a cancer recurrence is forming. A third application discusses a method of analyzing albumin/peptide compounds in a patient’s plasma to determine if a blood flow issue exists. Other patent applications we feature here focus on improvements to surgical procedures. One patent application explains a new development for specialized surgical robotics and an improved interface for surgeon control. Finally, we feature a patent application discussing a minimally invasive surgical treatment for obesity using a gastric sponge.

One patent application discusses a solar collector that is low in price while providing sun tracking capabilities. Additionally, a number of applications and issued patents we cover today deal with human sensory or biomedical developments. One patent application describes a system of using porous film to delivery medication to the eye. A recently issued patent protects a system of detecting heart arrhythmias without invasive ablation procedures. Another patent application would protect a method for sampling aromatic compounds to determine their chemical composition and a person’s olfactory response to segments of the aromatic compound.

From this perspective, (and setting aside considerations of novelty or obviousness) one might conclude that, rather than claiming some methods with reference to anything that looks like a law of nature in a claim, thus raising the specter of §101, it may be better to claim some methods more broadly so as to avoid such issues – maybe obtaining broader claim scope in any event.

Those supporting the reasoning in Breyer’s opinion repeatedly “crow” that Mayo Collaborative Services was a 9-0 decision. But the fact that 9 technologically-challenged Justices reached a unanimous decision based on nonsensical, as well as logically and legally-flawed, reasoning does not impress me, or persuade me. That those 9 Justices simply chose to trounce the Federal Circuit’s decision without leaving any understandable guidance in its place for us mere mortals, chose to deliberately ignore a thoughtful suggestion from the U.S. Solicitor General, and simply determined patent-eligibility under 35 U.S.C. § 101 in a vacuum divorced from any consideration of the relevant context of other patent statutes just makes Breyer’s opinion result-driven and despotic. Such patent law despotism does not earn my respect, only my scorn.

Well, Justice Breyer, the writer of the dissenting opinion in Laboratory Corp. v. Metabolite Laboratories, Inc., finally got his wish. Writing the opinion for a unanimous Supreme Court in Mayo Collaborative Services v. Prometheus Laboratories, Inc., Breyer ruled that a claimed drug dosage calibration method based on previously unknown “precise correlations between metabolite levels [of administered thiopurine drugs] and likely harm or ineffectiveness” was patent-ineligible under 35 U.S.C. § 101 because it “adds nothing to the laws of nature that is not already present when the steps [of the claimed method] are considered separately.” While I’m not surprised that Breyer ruled the claimed method patent-ineligible, his reasoning in Mayo Collaborative Services is, in my view, often nonsensical, and is fraught with unfortunate statements that could potentially eviscerate the patent-eligibility of drug testing methods generally under 35 U.S.C. § 101.

The sky is falling! Those who feel the Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. is terrible are right, although many won’t likely fully apprehend the gravity of the situation at first. Those in the biotech, pharmaceutical and chemical industries have just been taken out behind the woodshed and summarily executed by the Supreme Court this morning. An enormous number of patents will now have no enforceable claims. Hundreds of billions of dollars in corporate value has been erased. But that might be a good thing. Immediate attention now must turn to Congress. Thank goodness that the technical amendments to the America Invents Act are outstanding. This will provide a perfect opportunity for Congress to save an industry that employs many millions of people, while at the same time undoing a pathetic, narrow-minded decision of the Supreme Court.

This was a very interesting discussion, although I was surprised at how little Bilski was mentioned. Although the hearing did digress on some tangents, the Justices’ questioning was generally on point and indicative of the difficult questions a case like this presents. Surely, the Court will be thinking of the impact a decision might have on the healthcare industry, as well as the information technology industry. Also, Justices are no doubt aware of other pending cases which may find their way to the Supreme Court, such as AMP v. USPTO, Classen v. Biogen, and the divided infringement cases of McKesson and Akamai. I will leave the reader to reach their own conclusions, but my best guess is that the Court is leaning toward the position that §101 should be a coarse filter and that §102 and §103 would be more appropriate to challenge the validity of the claims in this case. We will learn the answer in the spring.

All in all it seemed to me that the majority of the court seemed more skeptical about the Mayo position and more supportive of the Prometheus position. That being said, it is extremely troubling to contemplate the possibility that Chief Justice Roberts was more in tune with the thinking of Justice Breyer. It is also disheartening to see such a fundamental misunderstanding of patent law on the part of the Chief Justice. At the end of the day the Justices of the Supreme Court will say what the law is on this issue, but sometimes it is hard to imagine a less qualified bunch to opine on a patent issue.

Some will undoubtedly view the Chief Judge’s basis in Ultramercial for distinguishing the ruling in CyberSource as being “slight of hand” and using “mirrors,” but it certainly illustrates the wide gulf of views between the various members on the Federal Circuit on the patent-eligibility question. I wouldn’t be surprised (and frankly it needs to happen) if both Ultramercial and CyberSource ended up before the en banc Federal Circuit. As I’ve noted previously, we’ve currently got what appear to be irreconcilable decisions in the Classen, Prometheus, and AMP cases in determining the patent-eligibility of certain medical (e.g., diagnostic) methods. With what appears to be similarly conflicting decisions in Ultramercial and CyberSource, the gauntlet has truly been thrown down. An en banc Federal Circuit needs to step in soon, or the conflagration that currently exists in the patent-eligibility “war” might soon consume us all.

Now that the Supreme Court has vacated and remanded both the Classen and Prometheus decisions, the Federal Circuit must revisit these issues. For Prometheus, the decision may be simpler, because the claims were already held to meet the machine-or-transformation test. Although the Supreme Court’s Bilski decision held that the M-or-T test was not the only test by which patent-eligibility can be determined, the Supreme Court seemed to have agreement from all nine Justices that the machine-or-transformation test was still a useful tool and valid option. See, e.g., Bilski, slip. op. at 2 of J. Breyer’s concurrence. Although a claim that does not meet the M-or-T test may still be patent-eligible under other theories, one can presume that the M-or-T test is still a “safe harbor” for claims that meet its provisions. The Federal Circuit’s re-visitation of Prometheus will be the first opportunity for this presumption to be tested.

At 2pm ET on November 9, 2009, Chief Justice John Roberts gaveled the session to a close announcing that the case had now been submitted. The arguments were good, and the Court was most assuredly hot, peppering both sides with question after question seeking to probe the issues. It is clear that the Supreme Court did their homework and spent no time gravitating to the weak points of the parties.