Google v. Oracle and the Future of Health Innovation
Google v. Oracle is a landmark copyright appeal that will decide the critical issues of copyrightability and fair use. The Federal Circuit wrote two clear opinions clarifying that Google’s copying from Oracle’s Java was copyright infringement.
In health care policy we’re usually discussing intellectual property in the context of patents. However, existing medical progress and future health innovation also hinge on broader technology, including copyright.
Using digital tools – and apps – to upgrade the practice of medicine is critical to advancing 21st Century health care. Digitized data, biosensors, new imaging tools, mobile device laboratory capabilities, end-to-end digital clinical trials, telemedicine, video game prescriptions, and other developing technologies depend on Intellectual Property (IP) protection (including copyrights). The right medicine, treatment, therapy, and technology for the right patient at the right time hangs on strong IP protection.
Recent examples showing the connection between High Tech and Better Health Care:
- The Apple Heart Study, the iPhone maker’s most ambitious health research project to date, was designed to see whether the Apple Watch and its heart-rate sensor could properly spot irregularities in people’s heartbeat. American Well, a telemedicine company based in Boston, linked study participants who got a confirmed abnormal reading to remote clinicians with whom they could talk through their diagnosis.
- Pharmaceutical companies are looking for ways to partner with companies like Fitbit, 23AndMe, and others to use data in developing improved health care results. Drug makers see that information — part of what’s known as real-world evidence — as a powerful tool to help them hunt for new drug targets and design more efficient clinical trials. And they’re racing to outbid one another for the most desirable data.
- In mid-2018, the startup Akili Interactive Labs asked the Food and Drug Administration (FDA) to let it do something that’s never been done before: market a video game that physicians would prescribe to kids with ADHD.
Google v. Oracle is not a health care tech case; however, if it is wrongly decided, medical progress will be endangered. Google v. Oracle will help decide the future of software’s impact on health care:
“’ “(T)he Supreme Court, which will decide if huge tech firms such as Google are allowed to simply swipe software code without consequence. If permitted, such action will undoubtedly chill software development.’”
“In short, without robust protections against the misuse, manipulation, or copying of IP, Americans’ right to property — a fundamental component of liberty — begins to erode. Unfortunately, if the Supreme Court rules in favor of Google in this case, that is exactly what could happen. The safeguards protecting digital information could be dismantled, threatening to undermine the very provisions that made America so economically strong.”
“Soon, the highest court in the land will decide whether Google’s actions did indeed constitute theft — as the lower courts ruled — or merely an expression of fair use. The case carries substantial repercussions; if the Supreme Court rules for Google, it will justify the company’s presumptive misuse of power. But more than that, it will incentive Google to act in a similar abusive fashion with future business partners.”
“Intellectual Property (IP) – is property. Stealing IP is wrong – and utterly destructive to any society looking to be a society.”
The COVID-19 crisis has forced the medical and science communities to accelerate the use of digital health. The lesson is that patients, physicians, and advocates must keep a watchful eye on the public debate over patent and copyright law and all issues impacting intellectual property. Digital health has – in a matter of months – made the evaluation of its purposes and impact on well-being central to health care policy.
SCOTUS has ordered Google and Oracle to file supplemental briefs addressing a fair use verdict that was decided in favor of Google’s position (due August 2020). Some tech experts believe this order shows that “at least five of the Justices are inclined to rule in favor of Google.” If the Court does, indeed, rule in Google’s favor, SCOTUS will severely disturb the advance of medical progress and digital health.
Jerry Rogers is the editor at RCH and the host of “The Jerry Rogers Show” on WBAL NewsRadio.