Article perview reprinted from "The Gray Sheet" - August 17, 2009
The medical device industry is asking the Supreme Court to overturn a Federal Circuit court decision that could exclude some diagnostics from patent eligibility.
Supreme Court Case Could Narrow Patent Eligibility For Diagnostics
Article perview reprinted from "The Gray Sheet" - August 17, 2009
Uncertainty about whether a technology could be patented would deter investment in research and development, AdvaMed, the Biotechnology Industry Organization (BIO) and two academic research institutions argue in a joint amicus brief filed Aug. 6.
In Bilski v. Doll, the high court will determine whether the Federal Circuit erred in holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing - the so-called "machine-or-transformation" test - to be eligible for patenting, according to the brief.
The Bilski patent application entitled "Energy Risk Management Method" describes a method for offering energy consumers a fixed energy bill so they can avoid high charges during peak demand periods. If the Supreme Court upholds the Federal Circuit's decision, however, many industries could be affected.
Various industry groups have filed about 50 amicus briefs so far asking the high court to decide against the machine-or-transformation test in determining patent eligibility, including financial services, management consulting, computer software, insurance and tax accounting groups.
"Biotechnology and medical technology innovation and investment are predicated on inclusive standards of patent eligibility - standards that have enabled great progress in the two fields," the AdvaMed/BIO brief states. "Because these technologies require investment in unusually high-risk, expensive research and development, only broad, well-established eligibility standards can promote its progress."
AdvaMed's members spend close to $9 million each year on research and development and publicly traded diagnostics companies with marketed products invest about 35% of their revenue in R&D, the brief states.
- Ingrid Mezo
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