The 2016 presidential election may be the most important presidential election in recent memory for the future of intellectual property, technology and innovation. Why? Impending Supreme Court appointments. Whether the Democratic nominee, Secretary of State Hillary Clinton, or Republican nominee, businessman Donald Trump, wins the election on November 8th, they will be tasked with the appointment of a justice to replace the late Justice Antonin Scalia. In addition, with three current justices at least 78 years or older, the next president could nominate up to four new justices during their term.

We have seen the significant effect of Supreme Court decisions in the past few years, particularly regarding patentable subject matter. In the past few years, the Supreme Court has ruled that diagnostic method patents are laws of nature, and therefore not patentable subject matter (Mayo v. Prometheus), naturally occurring DNA is not patentable subject matter, but synthetically produced cDNA is (AMP v. Myriad Genetics), and adding a computer to an otherwise abstract idea did not transform claims into eligible subject matter (Alice Corp. v. CLS). Other rulings, such as the Supreme Court’s decision not to hear the appeal of Sequenom, Inc. v. Ariosa, in which it had been previously ruled Sequenom’s prenatal test was based on a biological process and therefore ineligible subject matter, have had a significant impact on industries like biotechnology.

Although technology and innovation certainly aren’t going to be the sole factors in the next President’s Supreme Court nominations, one would hope it would be strongly considered. While it may not get as much publicity as other topics, that does not make it any less important. This should be an interesting storyline moving forward in the month leading up to the election in November.

Sources: http://www.alternet.org/election-2016/next-president-likely-appoint-4-supreme-court-justices http://writtendescription.blogspot.com/p/patents-scotus.html https://www.statnews.com/2016/06/27/supreme-court-biotech-patents/ http://www.theatlantic.com/politics/archive/2016/09/in-debate-two-the-questions-are-on-the-ballot/501791/

For more information on this topic, please visit our Patent Protection service page, which is part of our Patent practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the patent law firm and its patent attorneys may be found at www.klemchuk.com.

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