The Supreme Court is already taking IP cases – patent law itself is the problem

In March 2012, the U.S. Supreme Court dealt a blow to the biotechnology industry, issuing a decision that will render many methods of medical diagnosis unpatentable. In Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Court invalidated patents on a method to determine the appropriate dosage level of the drug thiopurine, which is used to treat autoimmune diseases.1 This method, in the Court’s view, did nothing more than apply an unpatentable law of nature, the correlation between thiopurine levels in the bloodstream and the drug’s efficacy, in a manner that was well-understood by doctors.2 3 To support its analysis, the Court twice cited Creation Without Restraint,4 the recent, pathbreaking book by Christina Bohannan5 and Herbert Hovenkamp.6

As the Supreme Court’s recently heightened interest in patent law illustrates,7 there is widespread belief that intellectual property (“IP”) law is in crisis. Common critiques of patent law are that the Patent and Trademark Office (“PTO”) grants too many patents, that these patents have poorly defined boundaries, and that patent litigation is too expensive and unpredictable. Patent law’s problems have inspired dozens of books,8 exponentially more scholarly articles, and even an episode of NPR’s This American Life.9 Congress has also recognized that patent reform is needed, passing the America Invents Act,10 which is intended to “improve patent quality and limit unnecessary and counterproductive litigation costs.”11 As for copyright law, the primary concern is interest-group capture of the legislative process by content owners (such as movie studios and record companies) at the expense of users (consumers, educators, and other artists), resulting in vast expansions of the rights and enforcement powers of copyright holders.12