CANCER

ADVOCACY

JUDICIAL ADVOCACY

Congress, the Executive Branch, the Judicial Branch and the people of the United States are bonded by a four-page handwritten document housed in a museum about 2 miles from the U.S. Capitol—the U.S. Constitution. This four-page handwritten document has alone created the best and most successful union of people in the world. Whenever our government strays outside this exquisitely balanced tripartite structure, mischief occurs in the form of damage to our union and our successes. This damage is now occurring to one of the most important factors that made the United States a success---motivation for innovation based on strong patent protection.

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​The U.S. Constitution created the balance of powers for our government to ensure that no one branch of the government would usurp too much power. Article I, Section 8, Clause 8 grant the exclusive right to create patent law to Congress. Congress used this power to create the statute on what subject matter is eligible for patent protection in the United States, which is now found in 35 U.S.C. Section 101. The U.S. Supreme Court thus only has the power to interpret the literal wording of Congress’ law, and is not authorized to create separate and inconsistent law, regardless whether it agrees. The U.S. Supreme Court has shown disdain for Congress and has ignored its statute and its Congressional legislative history. Instead, it has created its own case law under which the is little or no patent protection left for medical diagnostics and natural product drugs, both used in the fight against cancer. Cancer advocates cannot allow this.

LEGISLATIVE ADVOCACY

The simple facts:

• The U.S. Constitution grants Congress the sole right to create patent law (Art. I, Section 8, Clause 8).

• Congress has repeatedly passed laws on what subject matter is eligible for patenting in the United States since 1790 (only three years after ratification of the Constitution).

• In well over 20 repeated passages of the law, Congress has insisted that both inventions and applied discoveries are patent eligible, even over dissent.

• The U.S. Supreme Court has held through a series of cases that inventions, but not applied discoveries, are eligible for patent protection in the U.S.       

• The U.S. Supreme Court has created “judicial exceptions” to Congress’ statute, that result in the statute meaning its exact opposite.

• The U.S. Supreme Court’s case law excluding applied discoveries from patent eligible subject matter has resulted in NO patent protection for personal medicine diagnostics since 2012.

• The U.S. Supreme Court’s case law excluding applied discoveries from patent eligible subject matter has resulted in NO patent protection for isolated natural product drugs, which have formed the core of anti-cancer therapy for years. Basic research on new isolated natural products has come to a full stop because of the Supreme Court cases.

• Personal diagnostics and drugs based on natural products are still patent eligible in Europe, China, Japan, South Korea and other foreign countries, which means the U.S. is falling behind globally.

• Since the Constitution grants Congress the sole right to create patent law, and the U.S. Supreme Court’s case law is inconsistent with Congress’ law, then the U.S. Supreme Court’s law is unconstitutional.

• The U.S. Supreme Court’s law is harming present and future cancer patients and their families and friends.       

• The U.S. Supreme Court’s law should be fixed by having Congress pass a new statute overriding the U.S. Supreme Court’s law which would return the United States to a prominent position in full motivation for cancer and other medical research. 

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