A Dreadful Prognosis: Patentability of Diagnostic and Personalized Medical Procedures in the Wake of In re Bilski

by Matthew D. Show, Ph.D. –

Over the past few decades, patent applicants in certain technological fields are discovering a conflict inherent between the nature of their claimed inventions and judicial interpretation of Jefferson’s Patent Act language throughout the 19th and 20th Centuries. This conflict is particularly apparent in the fields of diagnostic and personalized medicine. This note discusses both modern Supreme Court precedent regarding the requirements for a patentable method claim as how Bilski v. Doll, a business method case, threatens to make such methods unpatentable. Additionally, this note offers the results of an analysis demonstrating how patent agents and attorneys currently draft these types of claims along with information as to how to alter these claims to conform to the en banc Federal Circuit’s decision in Bilski. This note argues that these types of method claims are not only deserving of patentability, they are a vital part of the American economy and are critical for the maintenance and improvement of public health.

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