With the Supreme Court’s grant last week of certiorari in the Myriad Genetics case (to answer the question whether human genes isolated from the body are patentable), and the antipathy of the court, perceived by many, to patents generally, we are reminded to consider what may be the underpinnings of such antipathy.
For those of us invested in the patent system, it is an article of faith that the system promotes innovation. No less a document than the U.S. Constitution tells us so. But an increasingly evident crescendo of criticism attacks that proposition head-on. Congress, the Supreme Court, the U.S. Court of Appeals for the Federal Circuit and the U.S. Patent and Trademark Office have responded in ways that should blunt the criticism to a significant degree. This has not dissuaded critics of the system. For example, these responses are largely ignored in the September publication, “The Case Against Patents,” by researchers at the Federal Reserve Bank of St. Louis.
