I had intended to post about this during the summer, but since courts can move slowly, there is still time. Prometheus Laboratories v. Mayo Collaborative Services et al. is a case pending at the U.S. Court of Appeals for the Federal Circuit, the usual home of Federal Court appeals involving intellectual property. Similar to the case of Myriad Genetics and its control of a diagnostic test for genes associated with breast cancer, the Prometheus suit (no connection to my previous blogging home) involves a patent on a test to assess the response of a patient to a specific drug treatment. The tests measure certain metabolites. Prometheus has a test, with a patent, and Mayo has a slightly different test.
While the tests are different, whether or not they can be patented comes to the issue of whether indications of basic scientific relationships do not fit the required patent criteria. Here the issue would be non-obviousness or uniqueness. Currently the judgment in this case is against the validity of the patent, and Prometheus initiated the appeal to the Federal Circuit. Whether this case influences the Myriad Genetics matter (or vice versa) is unclear. A more likely possibility is in the event the two cases come to different conclusions, the Supremes may weigh in. But that won’t happen for months.