Opinions and Editorials

Jun. 30, 2020

Townhall: National Innovation Policy Is Being Usurped by the Uninformed Courts by Judge Paul Michel and Matthew Dowd

Common sense and constitutional order are turned upside down when unelected judges countermand congressional policy decisions. In addition to having better tools to make well-informed choices and better access to a broad range of expert advice, elected representatives of the citizenry are the appropriate officials to weigh all the trade-offs and strike the compromises and balances needed in setting policy.

Nevertheless, the Supreme Court for almost a decade has intervened in the area of national innovation policy to alter the choices made by the legislature. In addition to being the wrong decisionmakers, the Justices have imposed policies that discourage investment and invention in critical technologies, such as medical diagnostic methods now needed to detect the coronavirus. Before 2012, such diagnostic methods were eligible for patenting—to reward innovators and to fund further R&D. But then, in its Mayo decision, the Court upended over a century of settled law, suddenly making such methods no longer eligible for patenting even if they meet all the other prerequisites Congress established as being sufficient for patent protection.

Over the past eight years, the Court’s ruling has diminished, if not practically destroyed, incentives to invest in diagnostic test inventions. Several leading health care institutions, including the famed Cleveland Clinic, virtually abandoned their work on new diagnostic tests when their patents were invalidated under the force of the Mayo case, years after their research was conducted and funds expended.

Although there are many reasons for the nation’s abysmal lack of preparedness to combat the Covid-19 pandemic, the loss of incentives to invest in diagnostic methods is surely one of them. Now, the entire nation is paying a terrible price, in part because of poor policy choices by the high court.