Admirable attempt by Cato, Reason Foundation, and CEI to argue on technical, statutory grounds that the courts should “restore the original meaning of patentable ‘process’ and reverse an expansion of patentable subject matter that has discouraged innovation and harmed U.S. industries.”
It’s great that Cato, Reason Foundation, and CEI all oppose the expansion of patents here and recognize its incompatibility with free markets and freedom of speech. Reason Foundation participated because of its “commitment to ‘Free Minds and Free Markets'”; CEI because of its view that state efforts to protect patent rights “must protect freedom of thought and preserve a rich public domain”; and Cato because the attempt to cover medical diagnostic processes by patents “implicates an overreach of the federal power to es-tablish patents, thus stifling free markets and in-fringing on individual liberty.”
by Ilya Shapiro, Jim Harper and Timothy B. Lee
Doctors and researchers regularly perform blood tests to determine the effectiveness of various drugs. The resulting correlations between the test results and patient health have recently become the subject of numerous “process” patents. That these patents have been upheld by the U.S. Court of Appeals for the Federal Circuit represents a dangerous expansion of traditional patent law. This expansion threatens to stifle free markets and infringe on individual liberty. In Mayo v. Prometheus, the Court will address the important question of whether someone can patent the process of observing correlations between blood test results and patient health. The primary legal issue here is whether naturally occurring correlations are patentable as “process” patents simply because the methods used to administer prescription drugs and test blood may involve “transformations” of body chemistry. Cato’s amicus brief, joined by the Reason Foundation and the Competitive Enterprise Institute, argues that these patents are not “processes” as the term was originally understood in the Patent Act of 1952. We liken medical-diagnostic patents to other abstract-process patents — such as software and business-method patents — that have resulted in financial losses for firms and discouraged innovation, and argue that enforcing these patents “will only serve to further slow the economy, retard technological innovation, distort the free market, and place human health at risk.” Moreover, upholding the patents at issue will impermissibly restrict public-domain activity because the final step in a medical-diagnostic patent is an entirely mental one that will be violated whenever a doctor performs a previously public-domain medical test after learning about the patented correlation. Our brief thus closes by arguing that the Court should also consider the profound First Amendment implications in allowing processes whose final step is entirely mental to be patented. “The Court has repeatedly recognized that the First Amendment protects freedom of thought as well as freedom of speech.” Unlike copyrights, patents lack traditional free-speech safeguards (such as exceptions for “fair use”) and, therefore, the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.
Timothy Lee is not completely opposed to IP (as noted here, Lee “can’t agree … that all copyright and patent monopolies are illegitimate”), but glad to see he is on the right side here (as he has been on software patents in general—see A Patent Lie: Software Patents and “Defensive” Patenting; Timothy Lee: “The Supreme Court Should Invalidate Software Patents”; Shock, awe: British government agrees that copyright has gone too far).
Curious to me that while the brief argues that the patent clause might be incompatible with the First Amendment, it does not make the argument that the First Amendment came later than the patent clause, and thus takes precedence to the extent of any incompatibility. (See Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Judge Rules EA has “1st Amendment Right” to Depict College Football Players.)
Update: see also “Copyright is Unconstitutional” (Nov. 27, 2011), and, in particular: An argument by the court as to why software patents also limit free speech: Here’s Why Software Patents Are in Peril After the Intellectual Ventures Ruling, Fortune, Oct. 3 2016