Will the Supremes Destroy What Good Came From 2020?

Will the Supremes Destroy What Good Came From 2020?
AP Photo/Paul Sakuma, File

Google v. Oracle America

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The year 2020 was a rotten, terrible, no-good year – Coronavirus, lockdowns, furloughs and layoffs, schools closed, and restaurants shuttered. In addition, 2020 was a year of protests and violence in our cities, and the national election was marked by rancor and historic division – Americans are more divided today than anytime, perhaps, since the Civil War.

Did 2020 leave us with any signs for hope?

At RealClearHealth (RCH), we see the unprecedented success of Operation Warp Speed (getting COVID-19 vaccines to market in less than a year) a real sign of medical progress. What’s more, during 2020, we did witness a remarkable, yet still emerging, expansion of digital-health. The extraordinary utilization of telehealth and digital-health technologies from virtual doctor visits to the use of health care apps is a positive signal that we’ve turned a ‘tech corner’ when it comes to improving health and access to cures, treatments, and therapies.

Indeed, 2020 offered more proof that digital-health is the essential factor to the future of medical progress. Last summer, the Food and Drug Administration (FDA) approved the first ever video game that can be marketed and prescribed as medicine in the United States. The FDA has authorized doctors to prescribe an iPhone and iPad game for children between the ages of eight and 12 years old with ADHD.

Telemedicine and digital-health are not ideas for tomorrow but are now everyday tools in hospitals, doctor offices, and patients’ homes across the country. However, digitized data, biosensors, new imaging tools, mobile device laboratory capabilities, end-to-end digital clinical trials, telemedicine, video game prescriptions, and other developing technologies all depend on protecting Intellectual Property Rights (IPR), including copyright. The right medicine, treatment, therapy, and technology for the right patient at the right time for the right cost hangs on strong IPR protection.

For this reason, RealClearHealth is watching the Supreme Court of the United States (SCOTUS) – explicitly, RCH is waiting for the Court’s decision in the copyright battle between Google and Oracle. It’s a case focused on computer code that will have far reaching consequences for the future of digital-health.

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.

Regardless of the straight-forwardness of the case, there is still cause for worry that the Court may turn out a wrong decision – i.e., fear that Oracle may lose the case.

I’m concerned”, Justice Samuel A. Alito Jr. told a lawyer for Google, “that, under your argument, all computer code is at risk of losing protection.” However, Chief Justice John G. Roberts Jr. noted the opposite concern. “We’re told that if we agree with Oracle, we will ruin our tech industry in the United States.”

Google’s interpretation of fair use violates intellectual property protection. To put it simply, Google’s position is a threat to IPR. If the SCOTUS allows Google’s copyright infringement to stand, future innovation in myriad sectors, including heath care, will be jeopardized.  

The future of health care innovation will include codes and programming, not just pills and therapies. In health care, the intellectual property discussion is usually in the context of patents. However, future innovations – such as digital tools, health and fitness apps, and video-game prescriptions – hinge on copyright.

In no small way, the future of digital-health hangs on what Chief Justice Roberts and his colleagues decide in Google v. Oracle America.

We’ve moved on from 2020 – our “terrible, horrible, no good, very bad” year. However, out of last year comes a hope for a better health care future. Right now, that future hinges on the SCOTUS making the correct decision in Google v. Oracle America. The Court must protect IPR … we’ll be watching.   

Jerry Rogers is the editor of RealClearHealth and the host of the 'Jerry Rogers Show' on WBAL NewsRadio. Follow him on Twitter @JerryRogersShow.

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