“When reporters mix up an incorrect description of the law with an incorrect description of the science it should not be surprising that public opinion is distorted…. We need to do better, but cannot expect the popular press to be an ally.”
Coverage of the ongoing patent reform debate in the Senate Judiciary Committee by the popular press has been alarmist and largely incorrect. For example, even just yesterday—five days after the final hearing on patent eligibility reform concluded—the top story in Google’s patent alert results was “Corporations shouldn’t be able to patent your DNA,” which leads with the sentence, “The practice of patenting genes, once banned by the Supreme Court, may come back soon despite a measure of horror the very idea once inspired.”
It would seem that those companies and entities that oppose reform to patent eligibility requirements are not going to meaningfully participate in the political process, and instead will wield their considerable PR machines in an effort to confuse, conflate and misdirect the public as part of their ongoing scheme to suppress innovation in America.
Indeed, we know that the high-tech industry was invited to testify before the Senate Judiciary Committee, but refused, as Senator Thom Tillis (R-NC) explained at the second hearing. Why would the high-tech industry choose to ignore these Senate hearings, where many dozens of witnesses both for and against reform were invited to share their views?
The Same Old Tactics
Refusing to participate is an age-old tactic in DC. Refuse to participate and then swoop in at the last minute and demand concessions. Congressman Doug Collins (R-GA), Ranking Member of the House Judiciary Committee and one of the Members of Congress spearheading this effort, warned against this ploy as far back as February of this year. That was the tactic used to hold copyright reforms for the music industry hostage for many months. Collins said he would not allow that to happen again. We shall see, because it seems that is in fact the play shaping up.
Another tried and true tactic is to simply misdirect and even lie when necessary. That seems to be the tactic de jour by those who are claiming that the proposed reforms would allow for genes to be patented. They make the entirely specious claim that the Supreme Court banned gene patents in AMP v. Myriad in 2013. There are several problems with that argument.
First, the argument is false. The Supreme Court did not ban gene patents. Myriad made two rulings. First, isolated DNA in its isolated form is not patent eligible. Second, cDNA is patentable as long as it is not identical to a strand of DNA. So, if cDNA is patent eligible in the many cases the Supreme Court specifically identified, that means that there was no categorical ban on gene patents. Those who are saying the Supreme Court categorically banned gene patents are engaging in revisionist history, wishful thinking, and are lying. Myriad did make it unnecessarily difficult for innovators in much of the U.S. biotechnology sector and has driven that innovation overseas along with the investment dollars, but the Supreme Court did not ban gene patents.
Congress, Not the Court, is Supreme
Second, the argument that reforming patent eligibility will somehow alter Supreme Court rulings in an insidious and inappropriate way is utterly ridiculous. Ever since 1804 in Marbury v. Madison, the Supreme Court has been the final arbiter on what the law says; that is true. But the Constitution grants Congress the power to define the law. In fact, the Supreme Court has been specifically overruled by the Congress many dozens of times throughout the history of the Republic. By some estimates, Congress has specifically overruled the Supreme Court several hundred times and has implicitly overruled the Supreme Court case law in many dozens of other cases. That is precisely the way our Constitutional system is set up.
Congress is the final word on the law unless the interpretation is one of a Constitutional magnitude. The Supreme Court has never ruled that the law of patent eligibility requires anything other than statutory construction. In other words, issues of patent eligibility do not rise to the level of a Constitutional concern, which means Congress has supreme, plenary power over the Supreme Court.
Patent law is difficult because it lies at the intersection of law, science and technology. Bad law and bad policy come from not understanding the subject matter, and from a failure to consider the delicate balance and incentive structures in place to encourage disclosure of innovations for the betterment of society. Without strong patent laws, innovations are guarded with trade secrets, which prevents the scientific giants of tomorrow from building on the shoulders of those who have preceded them. These downstream ramifications are particularly concerning when the innovation in question relates to our healthcare.
Don’t Be Part of the Problem
When reporters mix up an incorrect description of the law with an incorrect description of the science it should not be surprising that public opinion is distorted. When public opinion is distorted, that leads to bad policy decisions. We need to do better, but cannot expect the popular press to be an ally because of the well-oiled PR machines of those companies that prefer to preserve a status quo that enables them to maintain an anticompetitive advantage over those who will innovate the future.
Those innovators negatively impacted by Supreme Court patent eligibility jurisprudence must get off the sidelines and get involved. Make phone calls, write letters, attend hearings, go to fundraisers, speak to Members of Congress, and attend events where Congress Members will be.
Let me be blunt: If you do not get involved in this debate now, you are as much a part of the problem as those who advocate for the status quo. Letting the few fight while lurking in the background is not a strategy to ensure a strong and vibrant patent system for the future.
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