“At times it seems as if we are living out a real-life Monty Python skit. Sadly, this is very real, and not at all funny. The Supreme Court is wrong more often than they are right on patent issues…”
Over the last 12 to 15 years I’ve seen things in America I thought I’d never see. Things I really don’t understand, although I can explain them in isolation. The big picture is elusive, fuzzy, even a bit of an enigma. But one thing is very clear, America is changing.
We’ve seen eminent domain used to take private property away from one private citizen and given to another private entity, we’ve seen secured creditors lose out to unsecured creditors in bankruptcy, we’ve candidates raise hundreds of millions of dollars without any real limitations. We’ve also seen those who pushed the U.S. economy to the brink not only escape jail but be given bonuses and proceed with business as usual as if nothing ever happened while real people lost everything. We’ve seen the U.S. patent system dismantled and weakened in order to please several unbelievably profitable corporations that make Standard Oil seem small by comparison.
There have always been bad decisions by judges and bad appellate courts, and poor policy decisions by political leaders, to put it politely. But I’ve seen things that make me scratch my head and wonder exactly how this is at all what the Founding Father’s had in mind.
In our space — the patent and innovation space — over the last decade I’ve heard from so many who think lawyers are the problem with society. They believe complaints about changes in laws and regulations, and the numerous ill-conceived judicial opinions are going to put lawyers out of work. It is that ignorance that allows mischief to be done because the masses are played for fools. What lawyers have ever made less or received less work when Congress changes the law, or the courts legislate from the bench? In a world that continually gets more complicated the cost of participating in the legal system only grows.
As a complex world becomes more complicated and the laws grow longer and more cumbersome it is advantageous only to those who can afford the lawyers. It disadvantages individuals and start-ups and small businesses, or in other words job creators. Lawyers are doing fine thank you very much, but that means it is more expensive for risk takers — those responsible for innovation — who are always starved for cash and already need to carefully triage what they will do with the limited funds available.
And during this time the Supreme Court, who has been on a crusade to weaken patent rights in America, has fundamentally altered the very fabric of what innovations can be protected. Without any change in the statute enacted by Congress, the Supreme Court has overruled themselves in a series of cases relating to what innovations can be patented regardless of whether they are new, non-obvious and useful.
Without any change in the law the Supreme Court has decided that there are some types of innovation that simply do not deserve to be patented even if they are new, non-obvious and no matter how useful. To the great dismay of many the Supreme Court has decided it is software, medical diagnostics, and biotechnology innovations that are not patent eligible; or in other words the future of any high-tech economy.
Most alarming, however, the Supreme Court, which was singularly responsible for the creation and subsequent dominance of the biotech industry in the United States in the 1980s, decided after more than 30 years that certain man-made products are no longer patentable. Again, all without any change in the law, just a change in philosophy that upset three decades of well-established law, vested rights, billions of dollars of investment and an entire industry and employs millions of people. But in their infinite wisdom the Supreme Court overruled their own decision that lead to the biotech revolution in the United States.
If man-made living matter could be patented in the U.S. investors were keenly interested. Now that certain man-made matter cannot be patented in the U.S. because the Supreme Court has had a change in philosophy, those companies and investors are going overseas, to Europe and China, where prospects for protection are good.
Meanwhile, the Supreme Court has actually taken the opportunity to lecture on the importance of stare decisis, the legal concept that extols the virtue of keeping the law the same when well established precedent has been relied upon. And the Supreme Court did this in a patent case no less. Yet, they don’t see the irony. In one case adhering to what was universally decried as the wrong rule because it was the rule for decades, and in another case changing their mind and obliterating much of the software, medical diagnostic and biotech industry in the U.S. To put this in perspective, the Cleveland Clinic has abandoned medical diagnostics because those innovations are not patentable.
Today, according to the Supreme Court patents are no longer property, but instead are nothing more than a “government franchise”. To reach that decision the Court had to ignore the statute, which says patents are to be treated as property. Truthfully, it seems that there is no level the Court will not stoop to in an effort to weaken patent rights in America.
Over the years the Supreme Court has reached many controversial decisions, but in the patent space they have made statements that demonstrate just how incompetent they are to render decisions in this vitally important area to our national economy. While the Supreme Court has ruled that a pH of 5 is equivalent to a pH of 6, that is simply false; pH is logarithmic. The Supreme Court has also ruled that manganese is equivalent to magnesium, which is also not true. The Supreme Court has ruled that isolated DNA exists in nature, which it doesn’t. But with each new, ridiculous decision that proves they are out of their depth we just live with the consequences as if what they say is visionary.
At times it seems as if we are living out a real-life Monty Python skit. Sadly, this is very real, and not at all funny. The Supreme Court is wrong more often than they are right on patent issues, and the Federal Circuit refuses to cabin Supreme Court decisions to the facts of the case. Instead, the Federal Circuit reads Supreme Court precedent as broadly as possible. What a nightmare of a perfect storm.
Image Source: Deposit Photos.