A corporation has patented that fact, and demands a royalty for its
use. Anyone who makes the fact public and encourages doctors to test
for the condition and treat it can be sued for royalty fees. Any doctor
who reads a patient's test results and even thinks of vitamin
deficiency infringes the patent. A federal circuit court held that mere
thinking violates the patent.
All this may sound absurd, but it is the heart of a case that will
be argued before the Supreme Court on Tuesday. In 1986 researchers
filed a patent application for a method of testing the levels of
homocysteine, an amino acid, in the blood. They went one step further
and asked for a patent on the basic biological relationship between
homocysteine and vitamin deficiency. A patent was granted that covered
both the test and the scientific fact. Eventually, a company called
Metabolite took over the license for the patent.
Although
Metabolite does not have a monopoly on test methods -- other companies
make homocysteine tests, too -- they assert licensing rights on the
correlation of elevated homocysteine with vitamin deficiency. A company
called LabCorp used a different test but published an article
mentioning the patented fact. Metabolite sued on a number of grounds,
and has won in court so far. But what the Supreme Court will
focus on is the nature of the claimed correlation. On the one hand,
courts have repeatedly held that basic bodily processes and "products
of nature" are not patentable. That's why no one owns gravity, or the
speed of light. But at the same time, courts have granted so-called
correlation patents for many years. Powerful forces are arrayed on both
sides of the issue.
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