A few months ago, my friend Professor Greg Dolin, MD, JD, invited me to join him on an amicus brief to the Supreme Court. The issue in front of the Court concerned the patentability of isolated DNA sequences and cDNA, specifically those used in the diagnosis of a genetic mutation linked to breast cancer. The brief that we submitted supported Myriad's position that both genetic tools qualify as patentable subject matter. There were two opposing views: that neither were patentable, and that cDNA was patentable while isolated DNA was not.
That brief generated a bit of press interest, as I noted in an earlier post. My prediction, having listened to oral arguments, was that the Court would rule as we had urged it to rule. In point of fact, the Court ruled today in favor of the middle ground--allowing cDNA patent while precluding isolated DNA patents.
I have two general reactions. The first comes from my perspective as a lawyer and a scholar; the second from my perspective as a citizen and a policy wonk.
It's always nice to get quoted in the press. I received an e-mail query from a reporter for Information Management asking about the recent discovery that our federal government was gleaning information from many of our largest technology companies.
The link above will take you to the story, but here's what I had to say:
People are getting pretty upset about “patent trolls” these
days. So much so, that even the White
House is getting into the act. And
that’s the sort of thing that everyone should notice. Because speaking as a guy who has spent most
of his career in the technology and IP worlds, I can tell you that a
Presidential statement about patent law is a pretty rare thing.
Some of the President’s ideas about improving our patent
system seem reasonable. Others are
innocuous. But as I have been writing
for years, our IP systems need wholesale reform—not tinkering at the
edges. This need is as clear in the
“troll wars” as it is elsewhere.
Suppose you combined a decline in confidence with the global
financial system, a distaste for fiat currency, a handful of secretive
encryption specialist, and the Internet.
What would you get? The answer is
Bitcoin, a technological attempt to tether global currency to something stable
and tough to manipulate, like mathematics, rather than something unstable and
manipulable, like politics.
A few weeks ago, while reviewing the names in my contact
list, I ran across a name that I thought I had purged long ago: a disturbed
(and disturbing) man named David (last name withheld), whom I had met in San
Francisco some years ago. That name triggered a deliberative stream of consciousness that got me thinking about some folks who keep popping into the news: those who knew the murderous Tsarnaev brothers back when they appeared to be little more than troubled souls--rather than the ticking time bombs they turned out to be.
Are exclusive rights, of the sort that define our IP systems, potentially useful in motivating innovative software development? Absolutely.
Can the bundle of rights that we use successfully to motivate innovation in pharmaceuticals similarly motivate innovation in software? Not a chance in hell.
By bifurcating all IP into the buckets of patent and copyright, we shoehorn innovations where they have no right being. Our patent system offers a uniform set of rights to innovators in all industries, independent of: up-front capital needs; likelihood of success; typical time from investment to return; ability to divert work if you are not first past the post; and relationship between innovation and product. While judges may vary their ruling by industry, they have no statutory right to do so--it represents clear activism from the bench. And to make matters worse, we imposed this uniformity on patent systems around the world via international treaty (TRIPS).
The debate over software patents will continue until we do the sensible thing: craft a set of rights tailored to the needs and incentives of software innovators.
The California Legislature shot down a "Right to Know" law that set Silicon Valley against Consumer Advocates. Basic question: Does a consumer have the right to demand any report that an on-line data aggregator compiles and sells about him?
The argument is straightforward.
The "pro" side believes that I have a right to know what others know--or think they know--about me.
The "con" side notes that such a requirement would be cumbersome, would complicate business, and would likely lead to further regulation and litigation.
This issue will not fade soon for a simple reason: They are both right.
The State of Israel turned 65 last month. Though I may have missed the moment, it
remains a fine season to pronounce loudly and proudly that I am a Zionist.
I am extraordinarily proud of the Jewish state. I believe that in the years since the land
emerged from the last of a long line of invaders and colonial powers, Israel
has indeed become a light to the nations—the demonstrable near-universal
preference for darkness notwithstanding.
Success under ideal conditions is a noteworthy
achievement. Israel has learned how to
thrive under conditions as adverse as those facing any nation on the
planet. The country has opened its arms
to countless immigrants; developed a world-class economy; demonstrated
unrivaled excellence in innovation and education; established truly liberal
governance and a genuinely independent judiciary; quelled brutal ethnic
uprisings with unequaled restraint; enacted a generous social safety network;
and never once deviated from the state’s liberal underpinnings. It has achieved all of these goals under
constant threat of annihilation, and amidst overwhelming opprobrium. Indeed, the Jewish State has become the Jew
of the States—proving that the unthinkable is doable, and meeting
near-universal resentment for doing so.
It's rare that direct personal experience provides an opportunity to call a prominent speaker to task. The esteemed Professor Dershowitz of Harvard Law School has provided me with such an opportunity.
For the past couple of weeks, Dershowitz has been positioning himself as a martyr in the cause of peace. For example, in today's Jerusalem Post, he writes: "I was booed and jeered at the Jerusalem Post Conference on April 28, 2013 when I proposed an idea for restarting peace negotiations with the Palestinian Authority."
Don't believe it for a minute. I was at that conference and in that audience. It was Dershowitz that was entirely out of line, demonstrating rare arrogance and contempt for people eager to hear what he had to say.