Prometheus Laboratories --

This is just a quick note to point out an interesting parallel between Prometheus and Diamond v. Diehr.

In claim 1 of Prometheus, one might argue that the last two steps are “mental steps” and therefore state “abstract ideas,” but that it is unassailable that the first two steps are statutory-eligible in nature, and certainly not “insignificant data gathering steps.”

Like Prometheus, in the Diehr case, claim 1 included

Claim 1 of the ’623 patent is representative of the independent claims asserted by Prometheus in this case:

A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:

(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and

(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,

wherein the level of 6-thioguanine less than about 230 pmol per 8×108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and

wherein the level of 6-thioguanine greater than about 400 pmol per 8×108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.

Claim 1 of the ’302 patent is substantially the same, with the inclusion of determining 6-MMP levels in addition to 6-TG.

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