Oblivious Supreme Court poised to legalize medical patents
arstechnica.com
arstechnica.com
It's popular to condemn the Supreme Court's decisions if you disagree with them, and it seems equally popular to blame them on the Supreme Court's fundamental misunderstanding of <x>. I'm not saying the SCotUS is flawless—hardly, they are made up of people—but it would behoove authors and readers if you started from the base assumption that you are dealing with brilliant jurists. Indeed, that is how lawyers have to prepare.
The lawyers arguing against the patent were likely aware both of the justices' intelligence and their general interpretations of patent law, therefore chose not to tread the path of invalidating medical patents in general. The questions asked by the justices were fair. Not expressing skepticism does not mean there is no skepticism, for one. We don't find that out until the decisions are written.
Whether this was a case where someone should have gone after medical patents in general is up for debate. In particular, it seems unlikely that the Mayo clinic, which probably has its own medical patents, would try to invalidate the concept itself.
If you read some more of the questions and interactions, you'll see that the Supreme Court seems anything but oblivious: they're trying to probe what should and should not be patentable in a field that involves actions and reactions that are all based in chemical fact. If neither they nor the lawyers can provide a satisfactory test to determine this, then all they can do is decide the specifics of this case.
True change in this area really is something where the Court can only do so much. The definitions of patents in general are determined by Congress and its laws. If we want to change them, we have to focus there. SCotUS has merely become our backup because it's been relatively difficult, particularly in the last 40 years or so, to convince Congress to pass laws that are potentially damaging in any way to the bottom lines of businesses.
Sorry, but this is just completely wrong. The law regarding patentable subject matter is almost entirely judge-made. There are broad categories of inventions in software, medicine, business methods, and elsewhere that clearly were not eligible for patent protection in 1980 and are eligible for patent protection under recent court decisions. This didn't change because Congress passed new legislation. It changed because the courts (primarily the Federal Circuit) changed its mind. Given that fact, it makes sense to criticize the courts for continuing to expand the bounds of patentable subject matter, no?
That said, it's worth asking whether the courts are actually expanding the bounds of patentable subject matter, or simply upholding the breadth of the existing laws. It doesn't seem like this is a case where they could expand it—that would involve overturning precedent. If they aren't overturning precedent, they're simply saying “yep, the law is in fact this broad”. I'm not super-well-versed in the details of the case, however.
Which precedent would that be?
I was, unfortunately, being a bit pedantic earlier and nitpicking your terminology (expanding vs actually interpreting some initial limits) instead of debating your actual point; I apologize for that.
His says this around 42:45 min into the video.
Your feelings on SCofUS seem a bit ideal to me. My opinion is that possibly every case the supreme court hears is an act of judicial activism, as they only hear the cases they want and there is plenty of detail available to the court by both parties prior to deciding whether to hear a case or not. In many cases, we can predict how the vote will turn out. These are political appointments. They are lifetime ones, but a justice has to serve a career towing the party line in order to make the short list.
For example, David Souter was appointed by Bush Sr and ended up being one of the most liberal justices on the court. Harold Blackmun, author of the majority decision in Roe v Wade, was appointed by Nixon. Ford appointed John Paul Stevens. Breyer and Ruth Bader Ginsburg, on the other hand, were both appointed by Clinton.
So the political leanings are not as clear-cut as you make them out to be. And there is significantly reduced pressure to toe any sort of party line after you are named to the court—that's precisely why the appointments are for life. Moreover, in order to get confirmed, it's tough for a justice to simply toe the party line. Confirmation is a 2/3 deal in the Senate, and it's extremely rare for one wing or the other to have 2/3 of the seats there. No one takes Supreme Court appointments lightly.
Even so, I think I've tempered for idealism. Idealism would say they'd come up with a perfect, fair decision, every time. I'm just saying they're not oblivious. They may have a different interpretation, they may not have a complete technical understanding, but these are not people who are oblivious. They're smart, they know how law works, and this is ultimately a debate about law, as it should be in a court. Yes, there is room for interpretation, but these are not fools, and I feel like the characterization of the Supreme Court as “oblivious” is a bit excessive in that sense.
Anyhow, you're right that they will read the amicus briefs. But I do wish they had given them more consideration. While it's true that you can't really gauge how they'll rule from the questioning in general, statements about how they "all agree" that it would be patentable if they'd included a few more numbers are very worrisome. Yes, sometimes they'll harshly question the side they ultimately support, perhaps to see how it fares under scrutiny, but I fear that important points were not disputed at all during that exchange.
Not saying they aren't intelligent. But they might be intelligent enough to have their wives take hundreds of thousands of dollars in lobbying money directly related to the cases before them and get away with it. So, not their intelligence I'm worried about. Its their ethics and morality.
The reality is that under the Patent Act, things which are not fundamentally "inventions" -- such as software algorithms, genes, and in this case, data correlations -- can legally be granted patents. This is a problem with the Act, not with any given court's interpretation of it, and that is what needs to change.
I can think of no better way to build political support for a major patent reform initiative than a constant stream of human-interest pieces on 60 Minutes where a handsome doctor earnestly explains that he couldn't save Bobby because of a patent claim from some faceless corporate troll.
Software is abstract and complicated. Saving Bobby is emotional and simple. If patents start to impact medicine the way they've impacted software development, they're not going to last very long in their current form.
Please never hope that the triumph of someone over you in argument, specially one that that gives them a new weapon to fight you, will eventually and reliably become a weakness in their defenses.
I'll try to explain why I think so without using analogies, since they almost always break arguments apart. I hope that by sticking to this particular case I am not interpreted as someone trying to straightly so predict the future but as someone making a point.
Let's say that Prometheus wins this, thus having the possibility of using this case to patent medical procedures and the using of statistical correlations. You are assuming that big pharmaceuticals will use this to stop lots of doctors from rightfully saving lives using what is now standard medical procedure... but I believe big pharmaceuticals are doing just fine now, and are not stupid enough to piss off the whole US population. What I would do if I were them is to extend the validity of the patent on a drug (in the case describe in the article it is thiopurine) by using another related patent that hasn't expired yet and that covers a procedure. This won't send a substantially higher number of Bobbys to the grave, but it won't reduce the cost of each non-dying Bobby to not-die, which is what one supposes eventually happens when patents on a Bobby-death-stopping drug expires and hence the drug can be manufactured generically or by competing big pharmaceutical labs.
So, in the end they get to make more money in the long run (since patents can be made to last longer) and things don't get worse for Bobby and the people, they just don't get as better as they should.
IMO, from a lawyers vantage point, what is the difference between a patent covering a software method (like encoding music) and a medical procedure? There really isn't any. Both are equally offensive to the folks who practice in these fields -- I have yet to meet a programmer in favor of software patents, and I'm sure doctors will feel the same way.
The problem is that the law as written is that software patents ARE ok. As long as that is true, how could any judge make a case that medical procedures are not?
I wouldn't count on congress fixing it either. I'll pass on something I recently overheard: "Lawyers should be banned from becoming law makers. It's a clear conflict of interest. "
I have both hardware and software patents and I don't see this distinction that you feel is obvious.
Why is the use of a specific mechanism consisting of and, or, shift, etc to, say, efficiently route vehicle traffic any less of an invention that then removing sulphur before heating rubber to produce a substance that retains its elasticity? (Hmm - that removal and the relevant monitoring looks like a "material correlation".)
BTW - You can't patent "genes". You can patent specific genes to do specific things.
The headline's use of 'legalize' only perpetuates the confusion surrounding Supreme Court decisions. It is the underlying legislation that gives life to the patent claim not the fact that the Court upholds patents that succesfully adhere to a misguided law.
Ambiguous or otherwise weak legislation leaves the court in a no-win situation of shaping public policy via judicial opinions.
And because of the implications of what you just said above. I'll leave it at that.
EDIT: In retrospect, I probably shouldn't have ended the post in that way. Instead, I'll acknowledge that this solution to silly patents is certainly viable. But that at the same time calling it "The best possible thing" seems somewhat narrow in the grand scheme of things. After all, it DOES require people to die to be workable.
Truly Dr. Heimlich missed an opportunity when he failed to patent his "trademark" maneuver.
In the future, perhaps we'll be expected to wear bracelets (or microchips) that tell the paramedics on which life-saving techniques we're up-to-date on our licensing payments.
Can you imagine not being able to get a cast because your hmo didn't license the patent for "applying gauze soaked in plaster to a broken or fractured limb to prevent the bone from moving while it heals"? crap.
A doctor prescribing generic prosac instead would then be violating MIT's patent.
Unfortunately here medical patents are already here. I don't think the Supreme Court is going to switch course either. What we really need is for Congress to act and impose compulsatory licensing on all patents if the end technology is a medical one. This is also what is needed to bring medical costs down in this country. Unfortunately Congress is in the hands of big business so they will probably run the other direction....
In reality, the Supreme Court is supremely political, and they regularly do shoot down a law because they think it sucks or approve a law because shooting it down would make people angry.
But it isn't merely a matter of disagreeing with the decision. It's the crass politicization of it. If you look at the breakdown of the vote, the Justices who supported Bush supported Bush, and those who supported Gore supported Gore. (Thomas's wife was heavily involved in Bush's campaign, and O'Conner had said the evening before the election that she'd find Gore's election personally disastrous.)
Nor can ideology account for the decision: the same justices who are pretty stingy when it comes to applying Fourteenth Amendment rights generally suddenly found it imperative to extend it to a radically new situation in an usurpation of state rights with federal judicial might. The converse was also true, as the Justices usually distrustful of states running their own elections suddenly thought that sacrosanct.
Edited to add a particularly damning quote:
"The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." IOW, Scalia is banning the recounting of the votes of undecided legality because it might make Bush's election look less legitimate and cause political turmoil.
Bush v. Gore is like a once in history Constitutional crisis. It's not representative.
I have no problem with patents if you are patenting an actual, working, viable product, when when you can patent an "idea" the entire purpose of a patent turns into a market full of arbitrage.
Lawyer sounds like a pretty good gig right now.
Lawyers get $16 million, members of the class get coupons on future Ticketmaster purchases.
Class action lawyers perform the same kind of high-risk high-reward gamble that startups engage in. While tech startups create value by making something useful, these lawyers create value by keeping powerful interests honest. The idea that they are unnecessary or should be capped because consumers will just "in the long run" "vote with their feet" has been shown to be (patently) false: corporations can take advantage of huge economies of scale when they breach millions of contracts in small, hidden ways. The only real recourse of an individual is to participate in a class action. Perhaps the biggest part of the individual's reward is that the corporation will stop its bad behavior.
I can understand distrust of the judicial system because it shows a bias in favor of the deep-pocketed. What I don't understand is why there's a distrust of class-action verdicts, where both parties compete on a relatively even playing field.
I've been reasonably happy with class-action lawyers when they've negotiated actual, non-trivial cash-money payments for their class. But Ticketmaster store credit, so they can take home money while failing to get anything for the class they supposedly represent? Fuck off. I filed an objection to the proposed settlement when I received that offensive proposal. If all they can negotiate is $1.50 in store credit, then I think we can safely say that they failed in their lawsuit, and shouldn't get any payment.
... if the website got 0.25% of every settlement, it could be pretty lucrative.
You can technically "opt out" and go sue the company yourself, but you're not going to get people who realistically, upon receiving notice that they are getting an unexpected settlement in-between two utility bills, decide to form their own class.
Now, I'd certainly argue that entrepreneurs create more wealth more effectively. That said, the more we learn about economics the more situations we find where market failures undermine efficient allocations of productive capital. And by and large our solution to those market failures has involved writing laws which are enforced in many cases by plaintiff's lawyers.
More seriously, I would have no qualms of going into the legal profession specifically to defend against this sort of brand of crazy where possible. (And of course more mundane cases as the majority.)
I'd wake up each morning feeling MUCH better than if I became something like say, a firefighter.