The Supreme Court decision in Mayo v. Prometheus and the Court’s remand of Myriad have provoked a lot of angst on the part of those in the life sciences. Still, the degree to which these cases might prove cataclysmic is tough to forecast, and those who think Chicken Little is overdoing it have some basis for skepticism.

So in the spirit of Prometheus and Epimetheus, the sibling Greek deities whose names translate respectively as forethought and afterthought, let’s examine the prospects for patents in this strange new world.

First, let’s ask Epimetheus about the Supreme Court decision in KSR v. Teleflex. The Court ruled in 2007 that any invention that would have occurred to a person “having ordinary skill in the art” is not patentable. Remember also that the doom-speak commenced immediately. For instance, law professor John Thomas of Georgetown University described the decision as “earth-shaking” during a session at the 2008 annual convention by the Advanced Medical Technology Association (AdvaMed), and Thomas was not alone in that assessment.

A lot has been written about the impact of KSR, but one thing strikes me as more telling than anything else. Had Thomas’s forecast proved out, one might have expected the backlog of patents at the Patent and Trademark Office to have ebbed noticeably as a result, but that didn’t happen. So how big a deal was it really?

This is not to imply that a Promethean view of Prometheus yields no cause for concern, but let’s not forget that Congress oversees PTO, not the nine black robes. Should patent chief David Kappos – who worked at IBM and hence has a profound appreciation for the economic importance of patents – decide he’s not interested in marching precisely to the letter of Justice Breyer’s dictum, what can the Supreme Court do? Not much. PTO is perfectly capable of subtly subverting and watering down the Court’s decision.

As for Myriad, there is nothing to prevent CAFC from registering essentially the same decision it offered previously, which was a 2-1 vote largely in support of Myriad’s patents for two breast cancer genes. If I’m not mistaken, CAFC more or less ignored the Supremes in Parker v. Flook, which has been widely cited as an important piece of the patent law landscape. So it’s not as if CAFC would be plowing virgin soil if it decided to ignore the implicit guidance for Myriad said to be found in Prometheus.

There is the possibility of a noticeable curtailment of patents due to Prometheus despite PTO’s leverage, but I’m pretty sure CAFC is not going to do something to annihilate life-science patents, partly because they may be unconvinced that the Supreme Court gets it about patents in the first place. I’d also point out that the judges at CAFC are less inclined than the denizens of the Supreme Court to indulge in airy abstraction and are much less cavalier about the centrality of patents to the economy and to the biotech century.

Obviously its easy for a member of the trade press to write breezily of such matters, and members of the patent bar would probably prefer that people like me leave such matters to people like them. Still, my advice is: Carry an umbrella if you must, but there’s no need to bolt for the nearest bomb shelter. The end of life science patents is not at hand.