Did the Supreme Court intentionally destroy the U.S. patent system?

Why did the Supreme Court intentionally destroy the U.S. patent system? That is a question many have been asking themselves in the wake of more than a decade of dubious decisions that continually erode patent rights and limit what is patent eligible. There is little doubt the Supreme Court has burned a path through the U.S. patent system as the result of twelve years of activism and implicitly overruling its own prior precedent.

While the Supreme Court is many things, and it is perfectly accurate to characterize this Court as a whole as anti-patent, it is quite another to characterize the Supreme Court as a knowing and intentional actor. That would require a level of understanding and appreciation they simply do not possess. Indeed, this Supreme Court is no more an intentional actor than a three-year-old. Whether as the result of hubris, complete indifference, or lack of aptitude, this Supreme Court is simply uninformed when it comes to patents, technology and the impact both play on the broader U.S. economy.

Yes, of course, the Supreme Court has been overwhelmingly responsible for the destruction of the U.S. patent system over the past twelve years, starting at least since making it difficult if not impossible for victorious patent owners to obtain a permanent injunction against infringers in eBay v. MerchExchange in 2006. What good is an exclusive right without the right to exclude? The Supreme Court didn’t answer that then, and hasn’t seen fit to answer that simple question since. But isn’t that so typical with those with only first level understanding of a subject? When confronted with facts that expose their positions or uninformed opinions for what they really are they simply retreat, ignore, and feign moral injury.

But are they really intentional actors? That would assume the Supreme Court has knowledge and understanding about what they are doing. It would also mean that they could be reasoned with. Simply stated, the Supreme Court, with the exception of Justice Gorsuch, lacks all knowledge and understanding of patents and technology, and there is no reason to believe they can be reasoned with. Yes, Chief Justice Roberts joined Justice Gorsuch in dissent in Oil States, but where has he been in all the other patent cases decided since he has been on the Court?

The Supreme Court is certainly intentionally ignorant, and the hubris they demonstrate even with respect to matters they clearly don’t understand is of epic proportions. And with respect to patent matters, it is if they are the only Supreme Court ever to consider these issues, and certainly the only Supreme Court to ever get it correct.

Over the last several years this Supreme Court has overruled previous panels of the U.S. Supreme Court on matters of patent eligibility that had been so well-established that it was viewed as heretical to even question. At one time everything made by man under the sun was considered patent eligible. That is what the legislative history of the 1952 Patent Act says, and what every court, including the Supreme Court, had quoted since it was written.

The law as the result of Diamond v. Chakrabarty was that the touchstone of patent eligibility was human intervention and action, which was simply ignored in AMP v. Myriad Genetics. In Diamond v. Diehr the Supreme Court told inferior courts not to conflate novelty and obviousness with patent eligibility, and yet that is exactly what this Supreme Court did in Mayo v. Prometheus and Alice v. CLS Bank. Indeed, the hubris of this Supreme Court is without bounds, throwing settled patent eligibility law dating back generations into uncertainty, overruling their own prior precedent, and deeply injuring American technological competitiveness.

And at the same time the Supreme Court ignores generations of well-established patent law that has enormous implications for high-tech startups and the U.S. economy, in a case where there is absolutely nothing at stake for anyone other than the litigants they extol the importance of following stare decisis.

With such intellectual dishonesty and selective application of legal principles as they and only they see fit, it is understandable that some would believe the Supreme Court is intentionally attempting to destroy the patent system.

It is easy to establish that the Supreme Court does not understand innovation, they don’t understand patent law, and they seem completely incapable of understanding what they are doing to the U.S. economy, or perhaps they don’t care enough to understand. But does that make them intentional actors, or does that make them ignorant actors?

Tucked far away from reality the Supreme Court acts as if they know everything about everything. In a world becoming more complex and specialized by the day it is utter fantasy to believe that a homogenous group of senior citizens from Ivy League schools who have no scientific training possesses the breadth and depth of knowledge to wisely pontificate on any and every subject, particularly those relating to cutting edge technology. And specifically issues that will directly affect the U.S. high-tech economy and American competitiveness.

Indeed, we have proof of the folly associated with thinking that the Supreme Court is sufficiently competent to address issues of patent law and technology that are at the heart of American competitiveness. It is because of the Supreme Court that high-tech startups are unable to obtain patent protection necessary to attract investors. It is because of the Supreme Court that entities like the Cleveland Clinic have abandoned entire fields of endeavor, like medical diagnostics. It is because of the Supreme Court that investors interested in artificial intelligence are taking their money to China and funding startups there, where both software and business methods are patent eligible, instead of funding U.S. AI startupus. Investors simply aren’t interested in many U.S. high-tech startups because they know many patents in the software, biotech and medical arenas are extremely difficult to obtain, and even if obtained will be impossible to keep thanks to the curtailing of what is patent eligible by the Supreme Court.

Congress needs to save us from the Supreme Court. They are incapable of forming patent policy, and doing that it isn’t their job in the first place. If they want to be legislators let them resign and run for Congress. In the meantime, it is time for those actually elected to Congress exercise their Constitutional duties and take control of America’s patent policy. This means Congress must legislatively reform Section 101, which must be done in a way that even the Supreme Court will be required to follow the law.