Comment: On Patents And Appropriations—And Tragedies

I write to provide a few remarks concerning Sasha Hoyt’s illuminating work published in the pages of this journal. In it, Hoyt addresses the impact of the Supreme Court’s patent eligibility decisions on private investment in the development of medical diagnostic technologies. As an initial matter, I want to congratulate Hoyt for tackling an important topic. As Hoyt discusses, medical diagnostic technologies enable the diagnosis of diseases and other medical conditions such as genetic disorders, and early and accurate diagnosis may lead to early treatments and, ultimately, at least in some cases, saved lives.

But the creation of medical diagnostic technologies often comes at great cost, and so a relevant question thus becomes how to fund the underlying work required to create these technologies. The two options up for consideration, broadly speaking, are private and public investment. Hoyt addresses the former by collecting and analyzing data to determine the role of utility patents—and in particular patent eligibility law—in supporting private investment. Given her analysis and conclusions, here I highlight the latter option, public investment.