Judges just aren't prepared to deal with technical fields like biotech, argue the American Council on Science and Health's Alex Berezow and Neal Mody from Zoic Capital in an op-ed appearing in the Wall Street Journal.
Courts have made seemingly contradictory rulings as well as ones that don't seem in line with the science, they write. For instance, the US Court of Appeals for the Federal Circuit upheld a ruling last year that invalidated Sequenom's patent on a way to test maternal blood for fetal DNA because DNA testing is well understood and routine, while it allowed a patent in In Vitro v. Cellzdirect that covered refreezing cells for research, saying that while the freezing and thawing steps were well known, repeating them was not. At the same time, the Supreme Court ruled in the Association for Molecular Pathology et al. v. Myriad Genetics that isolated DNA could not be patented, but that cDNA could be.
Because of this, Berezow and Mody argue that a special court for technologically complex patents should be established. "Such a court would be staffed with judges and experts who have backgrounds in software, artificial intelligence, nanotechnology, biotechnology and other scientific fields," they say. "This would ensure that the complex decision of whether a patent should stand is made by people with the years of experience needed to fully understand the implications of their rulings."