The Only Way to Counter False Claims on Patent Reform is to Enter the Debate

By Gene Quinn
June 17, 2019

“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.”

https://depositphotos.com/76939119/stock-photo-be-heard-words-on-a.htmlCoverage 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.

 

Image Source: Deposit Photos
Photo by iqoncept
ID: 76939119 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 12 Comments comments. Join the discussion.

  1. Anon June 17, 2019 6:39 pm

    Bravo Gene.

  2. Game OVER June 17, 2019 8:36 pm

    Gene I have been enjoying your posts but we all know, no one is bigger then Big Tech. Apple owns $52.6 billion in US Treasury’s this gives them leverage with the courts. Key Republicans and Democrats all collect donations from Silicon Valley which also gives them a greater seats at the table. Let me just say PATENTS are DEAD!!!!! We all know how the AIA Act -PTAB -EBay-Alice-Mayo have killed off patent rights, there is know one left standing to protect a patent holder! Sen Tillis and Sen Coons will carve out a section for Big Pharma and leave a loophole for Silicon Valley to continue their theft they will fix one section only to create another back door for patent thieves. No point filling for a patent in America, you will never get paid or get what the true value of your patent is worth.

  3. B June 18, 2019 5:58 am

    @ Gene “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.”

    Gene, the Supreme Court need only declare that Congress overstepped its authority under A1S8. They did exactly that in Cuno Engineering. “Tested by that principle, Mead’s device was not patentable. We cannot conclude that his skill in making this contribution reached the level of inventive genius which the Constitution, Art. I, § 8, authorizes Congress to reward.”

    There it is. The Supreme Court reserves the standards of patent eligibility for itself. Of course, this must be read in context with Graham v Deere.

  4. Lost In Norway June 18, 2019 7:12 am

    Gene, this is a good article. Does my little voice really matter here? I am a little (unimportant) practitioner in a small firm without much pull.

    I want to join the fight but I am unsure of the mechanics of doing something. I have a tendency to froth at the mouth and go red when I start talking about this subject with people.

    Does anyone have any suggestions of what I should say to my state’s representatives in an “elevator” pitch style? I am not scared to call them, but don’t know what to say.

  5. Night Writer June 18, 2019 8:39 am

    What I have said now for about 15 years is that the only hope is to create PAC that is well funded. The problem is that the K Street people are very well paid and very smart. I worked at a law firm that was being paid by SV to help burn down the patent system.

    We just don’t have time. And again–the best thing we could do is take down Lemley. He acts unethically and has been the justification for burning down the patent system. This papers that are often cited by the Scotus often have serious ethical problems. Without Lemley this would not have happened.

    What B says @3 is correct. In Alice, the Scotus stated that its basis was the Constitution. That is that any person that understands Constitutional law will recognize that the holding in Alice was that the claims were unconstitutionally granted. (I know there are a couple of loud mouths on here that disagree.)

  6. TFCFM June 18, 2019 9:27 am

    The bad news: It’s a little much to expect the popular press to grasp and accurately explain some of the finer nuances of patentability and eligibility.

    The good news: It really doesn’t matter what the popular press says. The public relations staff of well-meaning legislators can dumb-down whatever their boss does every bit as much as the popular press does.

  7. Anon June 18, 2019 10:34 am

    Game OVER,

    PLEASE stop being a “just don’t bother” mouthpiece of the Efficient Infringers.

    You are directly spreading their desired message.

    You may well choose to feel that way, or any way that you want to feel. But be aware that you basically spit in the face of all those who choose otherwise and choose to attempt to reclaim a strong patent system.

    I do have to ask though with your instant negativity – did you bother at all to listen to the Tillis hearings, or did you already just quit?

    B @ 3,

    Let’s not forget the rest of the story as to that “Flash of Genius” (nor let’s not forget that diligence must be maintained).

    LiN @ 4,

    The truth of the matter is that your little voice may not matter, but it surely WILL NOT matter if you do not try. You never hit home runs on pitches that you do not swing at.

    The mechanics are many and varied. Some will BE public (Paul Morinville still deserves thanks even as he shares that others ALSO deserve thanks). Some will be by way of blogs (and providing counterpoints to the rampant propaganda being foisted on the public). Some will be direct contact with elected representatives. Some will be ALL or a part combination of these and others.

    As to “what to say,”” say what you mean, what you observe, and why you want to speak up. Such will be more effective than any canned script (see how inane a canned script can be with the Efficient InFringers Front “write-in campaign at the USPTO public comment collection to the January 2019 eligibility protocol effort.

    You can “practice here” with your own personal elevator speech.

  8. Anon June 18, 2019 11:19 am

    Night Writer @ 5,

    Respectfully, Bite me.

    Please refrain from the mindless ad hominem route when you have refused to actually address the multi-prong rebuttal put to you on its merits.

  9. B June 18, 2019 12:50 pm

    @ Anon “Let’s not forget the rest of the story as to that “Flash of Genius” (nor let’s not forget that diligence must be maintained)”

    I’m unsure as to “the rest of the story,” unless you’re referring to the excise of such nonsense via the 1952 Patent Act. Hence my statement re: Graham v. Deere where the SCOTUS declared removing “invention” from patent validity under 103 was constitutional.

    @ Night Writer “That is that any person that understands Constitutional law will recognize that the holding in Alice was that the claims were unconstitutionally granted”

    Yes and no. I don’t think the SCOTUS actually thought through the Constitutional aspects of Alice Corp., but the view of Cuno is necessary to justify these moronic exceptions.

    FWIW, I intend to send the SCOTUS a question on rehearing as to the issue, but since when has the SCOTUS ever admitted to a mistake?

    Wasted effort likely, but it will give me a talking point to Congress.

  10. Anon June 18, 2019 4:31 pm

    but since when has the SCOTUS ever admitted to a mistake?

    I see the definite difficulty there B. May I recommend a review of the Kavanaugh Scissors that I have written about on this blog?

  11. Pro Say June 19, 2019 9:30 pm

    Lost @ 4: Here’s what you (and anyone else) can do:

    Print off and mail Paul Morinville’s written testimony — with a short, personalized cover letter — to all the committee members along with as many Senate and Representative members as possible (especially your own state / area folks).

    Paul’s written testimony (along with his in-person testimony) is the most complete, best documented, and most powerful treatise for patent reform I have every seen.

  12. Anon June 20, 2019 10:01 am

    Pro Say,

    I would not advise as you have done here. That path is too reminiscent of the path that the Efficient InFringer Front path took with its “bombardment” of the USPTO 101 feedback.

    I think that THAT tactic blew up in the face of the EFF.

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website