The Supreme Court on Wednesday heard oral arguments in a case that raises a fundamental question: whether a physician can infringe a patent merely by using scientific research to inform her treatment decisions.
Unfortunately, this issue was barely mentioned in Wednesday's arguments. A number of influential organizations had filed briefs warning of the dire consequences of allowing medical patents, but their arguments were largely ignored in the courtroom. Instead, everyone seemed to agree that medical patents were legal in general, and focused on the narrow question of whether the specific patent in the case was overly broad.
This should make the nation's doctors extremely nervous. For two decades, the software industry has struggled with the harmful effects of patents on software. In contrast, doctors have traditionally been free to practice medicine without worrying about whether their treatment decisions run afoul of someone's patent. Now the Supreme Court seems poised to expand patent law into the medical profession, where it's unlikely to work any better than it has in software.