Story Telling

McDonnell Boehnen Hulbert & Berghoff LLP

McDonnell Boehnen Hulbert & Berghoff LLP

Patent law (and, consequently, patent lawyers) can be viewed as having at least a slightly tighter tether on concrete, factual reality than other areas of the law, at least to the extent that making patent-related legal arguments are more fact-specific.  This can cause some interesting contrasts when addressing arguments to a court; this was seen dramatically during the Myriad litigation, where some lawyers interpreted the claims to BRCA genes to encompass total genomic DNA, and of course to the infamous "magic microscope" argument (although choosing lithium as an example of a patent-ineligible product of nature was clever, insofar as the bonds in elemental lithium have a significant covalent character).

These realities impact storytelling in patent law, because telling a compelling story is a hallmark of good lawyering, whether in a patent application (to the Patent Office and investors) or in litigation (to a district court, the Federal Circuit, or the PTAB; by the time a case gets to the Supreme Court it is rare that the facts are as important or likely to be properly understood).  But another thing Myriad taught patent lawyers is the flexibility of argument and how facts can be interpreted almost any way an advocate wants; as a former partner used to say, "your strengths are also your weaknesses" in homage to the pliability of fact-based argument.

An illustration of this principle, in an area far removed from legal argument (and indeed, being scientific argument might be thought to be devoid of the malleability of argumentation that arises in the law) was the interpretation of analogous biological features, as set forth by William Buckland, in The Bridgewater Treatises,  Volume 6 (1836), with regard to Ichthyosaurus, a marine dinosaur, fossils of which had been discovered by several proto-paleontologists.  The fossil was (and is) remarkable as appearing to be a combination of several parts recognized in other animals: "paddles similar to those of a whale, a crocodile-like head, vertebrae like those of a fish, and a sternum like that of the enigmatic creature from Australia, the platypus" (see B. Switek, Written in Stone, Bellevue Library Press, Kindle Edition, p. 56).

Buckland interpreted the animal thusly in finding it an example of God's handiwork:

The introduction to these animals, of such aberrations from the type of their respective orders to accommodate deviations from the usual habits of these orders, exhibits a union of compensative contrivances, so similar in their relations, so identical in their objects, and so perfect in the adaptation of each subordinate part, to the harmony and perfection of the whole; that we cannot but recognise throughout them all, the workings of one and the same eternal principle of Wisdom and Intelligence, presiding from first to last over the total fabric of Creation.

Of course, this interpretation was prior to Darwin's publication of the Origin of Species by Means of Natural Selection which, despite providing a mechanism by which evolution could occur, and the Herculean efforts of Thomas Henry Huxley to defend, was not immediately adopted.  But Darwin's insight provided an alternative explanation (the modern one) to observations of the fossil anomaly, that of convergent evolution or homology, wherein, for example, the forelimbs of whale, bat, and human are derived from one another and illustrate "descent with modification," a mechanism that does not explain the forelimb of a crab (an example of an analogous rather than homologous structure).  It is facile to mock Buckland's argument today, but better perhaps to recognize that his explanation was one dependent on his presumptions and lacking the theoretical structure Darwin (and his philosophical descendants) have provided to us.

These considerations are relevant, in a way, to the philosophical debates surrounding patent law today.  These include patent eligibility, the role of patent exclusivity on drug prices, and the extent to which innovation should be protected by robust patents.  These questions abound in the public discourse and in government, wherein a particular party's positions are frequently determined by a desired outcome rather than having a sound epistemological basis (see "FTC to the Rescue Regarding High Drug Prices and Patents").  But they have been nonetheless persuasive to policymakers and the public (see "A Solution in Search of a Problem"; "More Ill-conceived Remedies from Congress Regarding Prescription Drug Costs"; and "Even More Ill-Conceived Remedies from Congress Regarding Prescription Drug Cost"); it may be easy to remember tense Thanksgiving dinner discussions amongst patent lawyers' family members about why it was right for any to try to patent a person's genes (see "In Support of Gene Patents").  Similar arguments are arising today regarding, for example, university technology transfer (see "Pigs Fly, Hell Has Frozen Over, and the New York Times Supports Small Inventor and University Patenting"), or high insulin prices, or biologic drug pricing in the hundreds of thousand dollars annually (see "Cancer Drug Prices Continue to Rise").

There are arguments, of course, and explanations for apparent anomalies in the effects of patent law on society (see, e.g., "The Effect of Patents and Drug Price Regulation on New Drug Diffusion Globally").  But these tend to fail the "cocktail party" test (wherein making these arguments rapidly causes people to eschew remaining in them for very long).  The answer is not (solely) "educating the public" (with all the risks of condescension that arise from such efforts).  Perhaps it is how the argument is made, evidence of which has begun to become evident in television commercials by pharmaceutical and biotechnology companies discussing the value new drugs bring.  Testimonials, from the beneficiaries of these drugs, can also be useful.  But there is also a need for economic research and arguments about the macroscopic effects of these advances, not regarding only their immediate costs but societal benefits with regard to economic productivity and reductions in ultimate healthcare costs, in addition to the less quantifiable aspects on the children and loved ones of those whose lives have been saved or extended by these medical advances (see, e.g., "Addressing Increased Drug Costs -- A Proposal").

There is no magic bullet or overarching argument that can save the day.  But changing or at least challenging the current memes that threaten to kill the golden goose of innovation is a necessary place to start if short-term pursuit of immediate benefits (see "The ACLU, Working for the Man") that disregards the long-term consequences of poorly thought out changes to how innovation is promoted and protected is to be accomplished.  It is critical that we do so and it needs to be done now.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McDonnell Boehnen Hulbert & Berghoff LLP | Attorney Advertising

Written by:

McDonnell Boehnen Hulbert & Berghoff LLP

McDonnell Boehnen Hulbert & Berghoff LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.