Is the Supreme Court anti-patent?

Is the Supreme Court anti-patent? This is a question that came up yesterday at the U.S Chamber of Commerce at the Innovation Policy and Intellectual Property conference co-sponsored by the Global Innovation Policy Center (GIPC) and the Center for Intellectual Property Understanding (CIPU).

I personally believe the Supreme Court is, by and large, philosophically opposed to patents in an unfair and biased way. Frankly, it is rather astonishing that there is not near universal agreement on this point. For example, witness the Court constantly referring to patents as a monopoly. Patents are not a monopoly, period. Anyone who disagrees is either oversimplifying a very complicated topic to the point of compromising truth, they are misusing a very specific economic term “monopoly”, or they are simply uninformed. Yet the Court mislabeled patents a monopoly. Why? The term is hardly one of endearment and is very telling in terms of how the Court is philosophically predisposed to view this property right derived from the Constitution.

Notwithstanding, it has been suggested to me that using rhetoric such as anti-patent in reference to the Supreme Court is not helpful in the policy debate, whether true or not, because it puts those urging pro-patent views on the defensive. If that is correct then it should be banned from our lexicon. But I still wonder how one can or should refer to Justices who repeatedly vote against the patent owner? Given that the Supreme Court does show rather clear hostility to patents, and philosophical opposition to core patent law fundamentals, and an incorrect association with monopolies, the short-hand characterization of anti-patent seems fair, if not perfectly accurate.

If you are a member of Congress and you claim to be Conservative, but you vote each and every time with Representative Nancy Pelosi (D-CA) or Senator Bernie Sanders (D-VT), at some point what you call yourself becomes moot. You are what you vote. Why that same logic doesn’t apply to Justices, or shy it is surprising that Justices May have a predilection, strikes me as odd. We characterize Justices as Conservative and Liberal, and on issues of Religious freedoms, Second Amendment, and States Rights, the Justices obviously have tendencies and preferences. Why then is it bizarre to contemplate the possibility that Justices might be philosophically opposed to patents?

In other words, if it walks like a duck and it quacks like a duck, odds are it is a duck.

Has political discourse gone so far in the direction of political correctness that we can’t state the obvious without risk of being offensive to the duck, or the duck’s supporters? We have jumped the shark if we are unable to legitimately call out bias and characterize it for what it really is.

But is the Supreme Court really anti-patent? If by anti-patent the question is whether they wake up each morning with the hope and desire of destroying the patent system, the answer is no, most certainly not. The Supreme Court cares little about patents, as evidenced by their reckless disregard for the complexity of the issues and how far reaching their decisions have been both for nascent technologies and the U.S. economy. But the Court’s patent decisions over the last 12 years have undeniably worked to destroy the patent system for inventors just the same as if they had intentionally and maliciously acted. So whether the rubble that lies in the wake of Supreme Court decision after Supreme Court decision was intentional or as the result of reckless disregard for the consequences of their actions, the devastation has been the same.

At a very early stage in my legal career, I was taught by my mentor that I should not attribute intent to what could be characterized by incompetence. “As it turns out, far more people are incompetent than are malicious,” he said. I sometimes forget that early lesson, and in a world where the Supreme Court is held out as practically infallible, it may be all the more shocking to think of the Court as just grossly incompetent and out of their depth. At least if they were acting with intent there would be reason involved, and hope that they could be convinced to ultimately do the right thing. But that ship seems to have sailed long ago. At least this configuration of Supreme Court Justices shows no appreciation for the Constitutional magnitude of intellectual property rights, the importance they play in the U.S. economy, and how the decisions of the past 12 years have dramatically disincentivized investment and thereby made innovating increasingly more difficult.

In what world does it make sense to question the patentability of software when we are at the dawn of the artificial intelligence revolution. Do you think the Court knows artificial intelligence is powered by software, not hardware? In what world does it make sense to question the patentability of medical diagnostics and personalized medicine, which promise to greatly extend life and eradicate disease and suffering? So hopelessly uncertain is the law with respect to diagnostics that most investors simply won’t touch startups in that space, which is why the Cleveland Clinic has abandoned medical diagnostics altogether.

Let that sink in. One of America’s premier research institutions — the Cleveland Clinic — is abandoning an area of innovation because of the Supreme Court.

Certainly, the Supreme Court is not pro-patent, and they are certainly showing no signs of being self-aware when it comes to the path of destruction they have cut through critical sectors of the American high-tech economy. But I guess that doesn’t make them anti-patent, or at least you can’t call them anti-patent because that is rude, or off putting, or offensive to those who hold the Court in high esteem.

I don’t know what the Supreme Court is, and I don’t know how they should be characterized in order to get Members of Congress to understand the chaos and destruction they have brought to the patent system. But one thing is for sure, the Supreme Court is responsible for a majority of the problems facing the U.S. patent system today.