Panel III: Gender and Intellectual Property in the U.S. Federal Courts
Moderator – Christine Farley, American University Washington College of Law
Jessica Silbey, Suffolk University Law School – Intellectual Property Reform Through the Lens of Constitutional Equality
Qualitative work: The meaning of progress to artists, given the constitutional demand. A complementary part of the project is case-driven. Not going to talk about one set of cases: total market failure/hold-outs. Will talk about SCt cases; reading them through the lens of “progress” she sees something new and strange. More than progress, she sees an emphasis on equality and distributive justice. Not sure whether she cares whether it was conscious or not, but is sure it exists.
Eldred: Incentive story doesn’t make sense to IP lawyers for retroactive term extension. Plus the marginal increase in reward in present dollar value is meaningless. Court had nothing to say to those arguments. Ginsburg could’ve just applied rational basis review—but she didn’t really do that either. The justification wasn’t incentives; it was equality—treating likes alike. Aristotelian norms of formal equality. She saw no reasonable basis to treat current authors differently from future authors. Words like “parity,” “alignment,” “alike, “evenhandledly,” “same,” “equity,” etc. dozens of times. Opinion spends a lot of time talking about authors and how it was reasonable for authors to expect they’d be treated like new authors should new benefits arise. This isn’t about incentives to create or disseminate, but dignity of equal treatment absent a good reason to deviate. Flawed on its own equality terms: fundamentally ignores that the history of democratic lawmaking was not representative. And assumes that the class of authors is similarly situated: people who receive royalties from traditional publishers. But it’s not. Failed to consider other © stakeholders and left them out entirely despite its formal inclusivity. Classic problem of formal neutrality: mechanically reciting like/unlike without comparing the history/hierarchy of classes. And Justice Ginsburg knows that.
That’s what Golan v. Holder is about: antisubordination. Foreign authors were treated unfairly in this view. Reparations: this is an affirmative action case. Special benefits to people who were injured/harmed as a group in previous regimes. Aims to eradicate imbalance of not having had © in the first place as a result of power imbalances. If we don’t understand that’s what’s going on, we will make the wrong arguments. But 104A causes real harm to people who are now forced to pay when they haven’t before, unlike discriminators who suffer no harm we are willing to recognize when they are forced to stop discriminating—Ginsburg thinks they deserve to have paid and were just free riders. Ignores harm to majority/stakeholders: rights exist only for © owners/romantic authors.
Can do this analysis with a lot of different SCt cases—it’s a key piece of the IP cases.
Sandra Park, ACLU Women’s Rights Project – A Feminist Challenge to Gene Patents: Association for Molecular Pathology v. Myriad Genetics
Deliberately feminist approach (project founded by Justice Ginsburg). Gene patents first granted in early 1980s. Ultimately granted patents on isolated DNA: gene excised from naturally occurring chromosome, regardless of individual from whom it was taken. Isolated DNA coding for BRCA1; and for any and all methods of comparing or analyzing sequences whether or not Myriad had developed the method. Locked up examination of that version of the genome because you need to isolate the genome to do any analysis, and method claims reached the methods you’d want to use.
Challenge over long time: result was unanimous ruling that isolated DNA is a product of nature, though cDNA is not. Lots of discussion about what Myriad means for §101, but she is interested in meaning for feminist advocacy. How to center women as stakeholders/agents for change? Most patent litigation involves suing competitors/alleged infringers. They tend not to have an interest in challenging a whole category of patents; may have similar patents of their own. So we thought about our larger goal of ending PTO grants of these types of patents—joint project w/ ACLU Speech, Privacy and Tech Project—spent a lot of time thinking about impacts on women. Harms to women seeking cheaper tests or tests their insurance would pay for. After Myriad got the patent, sent C&Ds to labs offering testing with different methods than Myriad, often cheaper; forced them to shut down.
There were a lot of silos: hadn’t had many conversations about the overall impacts. So we assembled plaintiffs with personal impacts—patients who had issues with costs of diagnostic testing; testing quality/Myriad didn’t search for mutations well-known to be connected to higher risk so that a negative result wasn’t as useful as it could be; ability to access confirmatory testing/second opinion. Other concerns about data sharing and research—Myriad amassed a huge amount of data and decided not to share it, with big impact on patients who received a result that they had a variant of uncertain significance. Interference with new technologies/downstream innovation.
Standing: the Federal Circuit found that only one plaintiff had standing, a geneticist who’d received a threat from Myriad. Important takeaway: having patients as part of plaintiff group still ensured there was still a spotlight on the nature of DNA as part of the human body. Not just a chemical, but info crucial to their families and themselves for decisionmaking.
The DNA was framed as if it were in isolation. We challenged that framing directly. Isolation was a problem: allowed permissively granting patents on natural products; distanced patented DNA from people’s bodies; used perspective of chemistry to mask patenting of biological information; obscured others’ contriubtions to discovery and the need for subsequent work.
Revitalized an area of law long dormant. Example of how to bring feminist practice into IP: divide between the patent bar and women’s rights lawyers.
Farley: Usefulness of constitutional frames in advocacy for better IP. Park tells a positive story about that. Does that contrast with Silbey’s story? Also wondering about how this kind of advocacy looks in TM law—maybe a TM disparagement case. How does the frame of equality help, if it could? [I’d think corporation/defamation analogy would be a useful frame.]
Why pick this case? Explanation sounded like “we wanted to have a constitutional challenge to patent law”—but why women?
Silbey: decision and oral argument in Myriad did not have the story being told by this narrative.
Park: Informed the case, public education around these issues, the SG’s brief/amicus interest. There was a legal resistance to the constitutional arguments; it was vital in the district court and helped us justify talking about women’s experiences, which we argued were relevant to what progress means in this context. That said, there was very little to look at for patent law/constitutional arguments. For the Federal Circuit, they weren’t interested in that aspect. Discussion moved away from more gendered understandings, but the stories/experiences were animating the reasoning. Our sense of our own bodies was really being debated at oral argument when Justices grappled with analogies about the technology.
Silbey: struggling with whether this is just a way of thinking that’s in the air, or something the Justices do think about in the background without having them formally introduced into the argument so it’s just coming in as a justificatory mode. Petrella, Justice Ginsburg mentions Lily Ledbetter case, where it’s different in that you didn’t know about the discrimination—she’s pro-author and wants the author to have the choice of when to sue. Kirtsaeng: a low-protectionist win, and the value of price discrimination is at issue; one of the things that helped was that, though we were thinking about market effects of price discrimination, there was a lot of stuff in the briefs about how a contrary result would decrease access. People do care about these doctrines—having the facts present, even if not mentioned in the case (Kirtsaeng had a lot of footnotes about this). Different organizations that testify, bring those facts about access and status/hierarchy, can change how we advocate.
Rosenblatt: Progress may be a malleable word with facial neutrality that ends up being exclusionary. Park says progress is more than isolation. Silbey says it’s been taken to mean “more,” but it’s really meant “more of some things and not others”—more commercialization, not more research/expressive work generally. Using progress in an exclusionary way comes out of both of your papers.
Silbey: Has thought of progress as a blank check to Congress, which gets filled in to replicate the status quo.
Chon: colorblindness always has a privileged position. Formal legal equality—author-privilege Ginsburg embraces in © she rejects in race. Whiteness as property, Cheryl Harris, is also relevant. Aligns w/what you’re trying to say: the liberty interest represented by property is dominant, which forces the equality interest to mutate.
Silbey: Scalia in Aereo is all about treating likes alike; Ginsburg is making deliberate choices.
[Amy Adler has great articles about the unspeakable feminine body in Supreme Court jurisprudence. You could get a great contrast between those cases and Campbell, actually.]
[Because Silbey was talking about her interviewees, now I want to write a piece on the wise author who asks “What are the IP laws?”; the wicked author who asks “What do these IP laws mean to you?”; the simple author who asks “what is this?”; and the author who does not know how to ask.]