Patentability

The Supreme Court will review Laboratory Corp. of America (LabCorp) v. Metabolite Laboratories (Fed. Cir. 2004), which presents the question (as framed by Petitioner):

Whether a method patent setting forth an indefinite, undescribed, and non-enabling step directing a party simply to “correlat[e]” test results can validly claim a monopoly over a basic scientific relationship used in medical treatment such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result.

Patently-O assesses the state of play.

Patent & Antitrust

In Schering-Plough Corp. v. FTC (March 8, 2005), the 11th Circuit rejected a Commission attempt to apply antitrust law automatically to invalidate a settlement between a drug patent holder and a potential generic competitor:

Simply because a brand-name pharmaceutical company holding a patent paid its generic competitor money cannot be the sole basis for a violation of antitrust law. This alone underscores the need to evaluate the strength of the patent. Our conclusion, to a degree, and we hope that the FTC is mindful of this, reflects policy. . . . we fear and reject a rule of law that would automatically invalidate any agreement where a patent-holding pharmaceutical manufacturer settles an infringement case by negotiating the generic’s entry date, and, in an ancillary transaction, pays for other products licensed by the generic.

The FTC filed for cert, and the Supreme Court has now asked the Solicitor General to weigh in.

Patently-O has more links.

ADDENDUM (12:45): SCOTUS also declined to review the Eolas decision, so that now goes back to the District Court. (Missed this one on the order list.)