Small wonder that the patent bar thinks this full employment act is the greatest thing since sliced bread, which someone would have no doubt patented (using just a knife) had the law allowed it at the time.

Before touching on the perceptive comment of finz, it should be pointed out that the ethical issues raised in medical patents are perhaps best dealt with in a single page of the BRIEF OF AMICI CURIAE [Friends of the Court] AMERICAN MEDICAL ASSOCIATION, THE AMERICAN COLLEGE OF MEDICAL GENETICS, THE AMERICAN SOCIETY OF HUMAN GENETICS, THE ASSOCIATION OF PROFESSORS OF HUMAN AND MEDICAL GENETICS, AND MAYO CLINIC IN SUPPORT OF RESPONDENTS [essentially the U.S. Patent and Trademark Office, which began the saga at issue in Bilski v. Kappos by denying the requested patent]. Because the filed brief is a public record, and as such not susceptible to copywrite, that (small) page is cited in full, as follows:

1. Patents on Scientific Principles Raise Ethical Concerns for Physicians

Physicians have longstanding ethical obligations to advance and share useful medical knowledge with patients and physicians. Principle V of the AMA’s Principles of Medical Ethics states that a “physician shall continue to study, apply and advance scientific knowledge,” and “make relevant information available to patients, colleagues, and the public.”3 Opinion 9.08 of the Code of Medical Ethics of the AMA elaborates upon this basic principle:

Physicians have an obligation to share their knowledge and skills and to report the results of clinical and laboratory research. . . . The intentional withholding of new medical knowledge, skills and techniques from colleagues for reasons of personal gain is detrimental to the medical profession and to society and is to be condemned.4

Discovery of a basic scientific principle that could be useful to others in devising medical applications or to physicians in diagnosing and treating patients is a quintessential example of the kind of medical knowledge that physicians are obliged to share freely. To interpret the patent laws to make scientific principles eligible for patent protection threatens to undermine, rather than promote, the ethical practice of medicine. [p. 14; emphasis added.]
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3 Available at http://www.ama-assn.org/ama/pub/cate...2.<br /> html (last visited April 5, 2009).
4 Available at http://www.ama-assn.org/ama1/pub/upl.../ceja_3i07.pdf (last visited April 5, 2009).

http://www.abanet.org/publiced/previ...edicalGrps.pdf [URLs to footnotes in Amici brief as maintained on ABA site do not appear to be working.]

Moreover, it was only after reviewing this brief that I understood why some of the justices had been giving the government's lawyer such a rough going over when he was merely calling on the Court to affirm the Federal Circuit's “machine or transformation” test that had been employed against a patent that all members of the Court (except the unspeaking Justice Thomas) clearly found objectionable. It was because in an earlier case, Laboratory Corp. of Am. Holdings v. Metabolite Labs., Inc., 548 U.S. 124 (2006) the Federal Circuit had held patent on a blood test extended to all use of general knowledge derived from test, and specifically to an observed correlation between a blood test report and a patients health, under the same “machine or transformation” test, and subsequently after the Supreme Court agreed to review the case, it changed it's mind over the strong dissent of Justices Stevens, Breyer and Souter and dismissed the appeal.

Now, finz speaks of the plot thickening, and does it ever. For in the first pages of the Amici brief, the Supreme Court is informed that a Mayo Clinic entity just lost an indistiguishable case before the Federal Circuit, in September of this year, where the appellate court also relied on its interpretation of the "machine or transformation” test. So what these folks are telling the Supreme Court is, in effect, "don't think you can get away with a simple rejection of the would-be patent holders' claims through an application of the 'machine or transformation' test, because if you do, we have another case teed up for next year's docket."

Mike