More commentary on Mayo v. Prometheus

21 Mar 2012

Some more commentary on Mayo v. Prometheus via the Patently-O blog.

A summary of the various briefs and history of the case can be found at the SCOTUS blog.

Some actual news coverage of the decision.

The decision is well-worth reading, if you’re that kind of nerd. Here, the Court uses the phrase “law of nature” a bit more loosely than perhaps I would use it. On the one hand, something like E=mc^2 might be considered a law of nature, but on the other hand I would consider the observation that certain blood metabolites are correlated with the occurrence of patient side effects as, well, a correlation. Einstein is referred to quite a few times in the opinion, no doubt in part because he himself worked in a patent office (and also discovered a few interesting laws of nature).

If one were to set aside the desire to do inference, then one could argue that in a given sample of people (random or not), any correlation observed within that sample is a “law of nature”, at least within that sample. Then if I draw a different sample and observe a different correlation, is that a different law of nature? Well, it might depend on whether it’s statistically significantly different.

In the end, maybe it doesn’t matter, because no law of nature is patentable, no matter how many there are. I do find it interesting that the Court considered, in some sense, the possibility of statistical variation.

The Court also noted that simply ordering a bunch of steps together did not make a procedure patentable, if the things that were put together were things that doctors (or people in the profession) were already doing. The question becomes, if you take away the statistical correlation in the patent, is there anything left? No, because doctors were already treating patients with immune-mediated gastrointestinal disorders and those patients were already being tested for blood metabolites. 

This section of the decision caught my eye because it sounded a lot like the work of an applied statistician. Much of applied statistics involves taking methods and techniques that are already well known (lasso, anyone?) and applying them in new and interesting ways to new and interesting data. It seems taking a bunch of well-known process/techniques and putting them together is not patentable, even if it is interesting. I don’t think I have a problem with that, but then again, getting patents aren’t my main goal.

Actual lawyers will be able to tell whether this case is significant. However, it seems there are many statistical correlations out there that are waiting to be turned into medical treatments. For example, take the Duke clinical trials saga. I don’t think it’s the case that none of these are patentable, because there still is the option of adding an “inventive concept” on top. However, it seems the simple algorthmic approach of “If X do this, and if Y do that” isn’t going to fly.