According to Kevin Noonan, writer of the Patent Docs blog, the Supreme Court's recent decision in Mayo Collaborative Services v. Prometheus Laboratories 'ignore(s) thirty years of Federal Circuit precedent in favor of its [own] decisions from thirty, sixty or over a hundred years ago."
Noonan continues that the court is creating a problem for American innovation as it is making the granting of patents in the life sciences area uncertain -- which hurts patent holders and dissuades investors. Most observers have understood for some time the danger of "imposing horse-and-buggy thinking about technology to the 21st Century" -- everyone except the supreme Court apparently.
The Court seems to have taken more of a "we'll know it is a patent-eligible subject matter" when we see it approach. This has the danger of being both arbitrary and unpredictable -- neither of which is good for the funding environment in an industry and its ultimate success if funding is a key factor - which certainly is the case for biotechnology.
So if there weren't enough assaults on the industry's health from a regulatory perspective, we've now added legal/IP uncertainty as well to make doubly sure investors think twice before plunking their money down.
By the way, from my practical point of view, it seems to be good that Prometheus was rejected. But in reading various attorney's take on the matter, it seems the Court is not paying attention to precedent in a predictable way in the patent arena. We're going to have to watch closely where this goes and how the patent attorney's respond to the Court's less than clear meanderings on "what is patentable".
Posted by Bruce Lehr Mar 23rd 2012.
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