On Patents, Israel, Democracy and Innovation.
It seems like we see it all over the news here in the US, and for those walking in the streets of Manhattan during the UN General Assemble this September 2023, (as well as the water of the east river and the skies above the Status of Liberty) it was a live experience - Israel fight for democracy and against proposed legislation that will de-facto remove any power the judicial branch in Israel has over the legislative branch. Obviously, this is the hot-topic in Israel, and for the last 38+ weeks, millions of protestors flooded the street of the small nation towns, trying to fight the Government attempt to seize more power.
While, as an Israeli, I’m heavily vested in that unrest, the simple question is - why does it matter to us, here, in the US? Well, here’s a story from our own back-yard, and how checks and balances are restored, the right way.
At the core of every real democracy, lays the concept of checks and balances. To fulfill this principle, the judiciary branch, while asked to service justice to the people, needs to interpret the laws set by the legislative branch, which sometimes means to set a legislative prerogatives despite of what the legislatives had in mind.
This story though, is about innovation, patents and control. It start way back with the US revolution.
Our forefathers understood that in order for the young nation to thrive, they need to nourish innovation. They had the audacity to define the law that will support that vision and thus created the best patent system of its time. The democratic patent system that is for-inventors has its roots with the US constitution. That patent system is showed to be directly correlated to the amazing growth of American innovation, manufacturing and blooming economy.
The statutory definition of patent eligible subject matter (section 101 of Patent Act) remained virtually unchanged, though during the 20th century, the Supreme Court set that there are three types of discoveries that are not patent-eligible: Laws of nature, Natural Phenomena and abstract ideas (known as the judicial exceptions for subject matter eligibility).
Fast forward to the 2010s. The exploding rate of innovation, as well as the will of some major players to use patents to fight off small competition. Inflated the rate of patent applications, and the speed of filing. In that atmosphere, the Supreme Court made a few revolutionary decisions in a series of cases (Bilsky, Mayo, Myriad and Alice) that broadened the scope of the three judicial exceptions, and dramatically changed the patent eligibility tests and understanding of what is subject matter eligibility. Both US courts and the US patent office struggled to implement the Supreme Court’s eligibility framework, and for years inventors were affected by getting their patent application deemed un-patentable. Innovation got hit.
In light of that ongoing ping pong between the Supreme Court and the US Patent Office, comes an interesting bi-partisan bill aiming to fix the US patent system.
Senators Chris Coons (D-DE) and Thom Tillis (R-NC) presented (again) in June 2023 the “Patent Eligibility Restoration Act of 2023” (PERA). This bill aims to eliminate all judiciary exceptions to the U.S patent eligibility law and will over-run said Supreme Court decisions. Checked, and balanced.
Why is that important? The proposed bill will ensure that exception to patent eligibility is very limited and well explained. This will not only remove a lot of obstacles from life-sciences patents, but also will breach the dam for software-related patents. Furthermore, this may open the gate for new AI-related patents.
It will likely be a renaissance for American innovation!
So, here we have an example of two- somewhat similar- cases of democracy in action.
In both Israel and the US the Supreme Court used legislative prerogatives to expand/interpret/broaden the gaps in the law. In Israel, the Government leverages the situation to justify a “reform” that will virtually shut-down any judicial oversight over the Knesset (the Israeli parliament) or the Government. They are attempting pass this reform as a ‘basic rule’ (Israel has no constitution), unilaterally, with a simple coalition majority vote, At the same time, here in the US, a bi-partisan initiative listened to the cries from inventors and the entire industry, and attempts to pass this bill that will re-assert Congressional authority to decide what is patentable.
Looking at the bigger picture, there’s a trend in the world today where countries move towards a less-democratic systems. We saw this happens in Hungary, Poland and now in Israel. While we have many reasons to complain about our own system and lawmakers here in the US, especially in light of the show we’ve seen in the last 24 hours with the house speaker ousting, we should remember that a true democracy is proven to be the best way to support innovation, progress and prosperity. The COVID pandemic proved to us, once again, that as long as we let innovation thrive, as a society, we can find a timely solution to any problem.
In these days of political standoffs, let’s remember that innovation can’t live without democracy, and democracy will not last without innovation.
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