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Comment by josaka | Hacker News Reader

This issued as US patent 9,386,790, so it's not just an application.

Most can keep fasting intermittently without infringing at least claim 1, typically the broadest claim. If you don't have (and know you have) "pancreatic beta cell destruction," you don't infringe. Even then, if you only cut to 51% of your normal intake or more, you don't infringe. Even then, if you restrict sugar but not protein, you don't infringe. Even then, if your re-feed at greater than 100% of your normal diet (which is common), you don't infringe.

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Could a private citizen following a dietary protocol actually be sued for infringement of a patent? Seems absurd, not to mention highly unenforceable.

This patent will be used as the basis for a racket that preys on health cranks, naturopaths etc that will sentence their followers to a slow death

For a claim to be literally infringed, every element of the claim must be present in the allegedly infringing use. Since the first element of the first claim is "identifying a subject exhibiting symptoms...", that element would need to be present in the private citizen's use as well. A single private citizen following a dietary protocol is probably not "identifying a subject exhibiting symptoms..."

Further, the language "administering multiple cycles of a diet protocol to the subject" seems to imply that multiple persons are needed in order to carry out this method, so it could be argued that a single private citizen could not infringe the claim by himself in any circumstances.

The same reasoning applies to all of the other claims since all of the claims as issued depend from claim 1 or from claims 16, 25, or 28, which have similar limiting language.

For those who want to research this further (including full claim text, history, who examined it, images of the submitted documents, etc):

1.) Navigate to http://portal.uspto.gov/pair/PublicPair

2.) Enter the CAPTCHA if prompted

3.) In the "Search for Application" form, select the radio button for 'patent number'

4.) Type '9,386,790', without quotes, into the 'Enter Number' text box.

5.) Click on the SEARCH button.

This will take you to the patent page with each of the tabs having different information about the patent. If you get a notification that the system is busy, just wait a few seconds and try again.

These same steps with different patent and application numbers can be used in the future if you run into other US patent related inquiries.

I am really curious how the first method/process claim was granted.

'1. A method of treating a symptom of diabetes, the method comprising: identifying a subject exhibiting symptoms caused by pancreatic beta cell destruction, the subject having a normal caloric intake; and administering multiple cycles of a diet protocol to the subject wherein a fasting mimicking diet is provided for a first time period and a re-feeding diet is provided for a second time period, the fasting mimicking diet providing less than about 50% of the normal caloric intake of the subject with both protein restriction and sugar restriction and the re-feeding diet providing 60-100 percent of the normal caloric intake of the subject, depending on a need to lose weight wherein the first time period is from 2 days to 6 days and the second time period is from 7 days to 85 days.'

This seems like un-patentable subject matter based on USPTO guidelines (https://www.uspto.gov/sites/default/files/web/offices/pac/da...). It seems to me that it fails the machine or transformation test for a process patent (https://en.wikipedia.org/wiki/Machine-or-transformation_test). The only way I could reason that it was patentable is if the 'diet protocol' has to be followed strictly based on the definition in the patent. The diet protocol has a long section with very specific micro-nutrient content. So that is the 'product', a calorie restricted diet with a narrowly defined micronutrient supplementation.

If there is anyone well versed, what is your opinion on the patentability of the first claim?

Patentable subject matter is explicitly broad, and the machine or transformation test is only a rough guideline, as your link points out. Most patents eventually get approved, but when the patent office does reject a patent it is not usually for subject matter.

First of all, a patent is presumed valid unless proven otherwise. (35 U.S.C. §282). However, this is challengable. In litigation, the patentee would argue that the invention at issue is a process and that, in the language of your citation, is one to "transform a particular article into a different state." Here the "article" in question is a "subject exhibiting symptoms..." who is transformed into the state of being a subject who has been treated.

The scope of the invention is stated by the claims, not what is disclosed in the specification. So, as you wrote, the "diet protocol" does have to be followed exactly, and all other other elements of the claim need to be present in order for there to be literal infringement of that claim.

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