No (Last-) October Surprise for Digital Health

No (Last-) October Surprise for Digital Health
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We have all witnessed the unprecedented success of Operation Warp Speed – a multi-faceted effort that, less than a year ago, committed to create, test, and distribute an effective vaccination for COVID-19. The first vaccines were shipped out and administered earlier this month. What usually takes up to ten years, America’s innovative bio-pharmaceutical companies accomplished – the design and testing of a new vaccine – in less than ten months. Nothing short of remarkable, miraculous really, in the history of science and medicine.

This unprecedented medical miracle would have been impossible without the robust protection of Intellectual Property Rights (IPR). For science and medicine, 2020 has taught us that fighting pandemics and protecting the future of medical progress both hinge on IPR. And any threat to intellectual property puts our medical future in jeopardy. Without IPR, American medicine would be defenseless in combating the next pandemic or treating the disease that is still unknown. Future cures depend on intellectual property.  

In health care policy, we typically explore Intellectual Property Rights in the context of patents. However, the fight against COVID-19 has shown us that both existing medical progress and future health innovation hinge on broader technology, including innovations subject to copyright. Using digital tools and applications to upgrade the practice of medicine is critical to advancing twenty-first century health care.

Telemedicine and digital-health are not ideas for tomorrow but are now everyday tools in hospitals, doctor offices, and patients’ homes across the country.  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 protecting IPR, including copyright. The right medicine, treatment, therapy, and technology for the right patient at the right time hangs on strong IPR protection.

As Operation Warp Speed and the exponential growth of digital-health shows us, the future of medical progress is happening now. However, whether that medical progress continues or if it suffers a devastating setback now rests with nine individuals in black robes, not scientists or doctors or patients.  

In October 2020, the Supreme Court of the United States (SCOTUS) heard oral arguments in the copyright case Google LLC v. Oracle America Inc. The facts of the case are straight forward: the two tech firms are in dispute over the intellectual property rights to Java. Oracle owns the software program. Google failed to secure a license with Oracle to use Java in its products. Claiming “fair use” Google then took large portions of the copyrighted program’s code for its own use.

Google’s interpretation of fair use is outside the norm. If the copyright infringement is left to stand, future innovation in myriad sectors, including heath care, will be jeopardized.  With its decision, SCOTUS will "establish a copyright precedent that will impact much more than the tech ecosystem."  If the Court decides for Google, its ruling will crush the future of digital-health, including telehealth and new technologies critical to fight Coronavirus-type pandemics.

IPR is a pre-requisite to health care innovation. However, for Silicon Valley, IPR is valued on a sliding scale. Big Tech firms with endless resources, like Google, can litigate over copyright (IPR) infractions until it no longer sees the utility in litigating. Health care innovators can ill afford such an indulgence – without firm rules and laws around IPR, medical progress is impossible. If Google’s copyright infringement stands, future medical progress will be impeded.

How the Court decides Google v. Oracle will affect more than the machinations of Silicon Valley. The future of health care innovation will include codes and programming, not just pills and therapies. So, the future of health care innovation may rest on how the SCOTUS decides a case argued last October 2020 has been difficult enough without a delayed ‘October Surprise’ messing with 2021.

If SCOTUS decides for Google, it will redefine fair use. Such a decision will seriously harm the future of digital-health, and digital-health is the future of medical progress.

Jerry Rogers is the editor of RealClearHealth and the host of the 'Jerry Rogers Show' on WBAL NewsRadio. Robert Goldberg is Vice President at the Center for Medicine in the Public Interest and co-host of the Patients Rising podcast.

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