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Friday, June 14, 2013

The Fine Details of Molecular Biology

So the most anticipated of yesterday's decisions is obviously Myriad Genetics, the gene-patenting case.  (The less said about my embarrassingly wrong prediction in Tarrant Regional Water District, the better!)  The Court's decision seems to be pretty much what everybody expected after oral argument.  But after straining to follow all of the majority opinion, I enjoyed Justice Scalia's brief concurrence:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

Some people have called this bizarre or mocked it as anti-evolution. Others defend it as intellectual humility. I have to say, my sympathies are with Justice Scalia. Whenever I read a long, complicated fact section in an opinion I cringe. (Which of these facts are really relevant? And if really relevant, how confident are we that they are correct?)

Indeed, Justice Scalia puts me in mind of the work of Allison Orr Larsen, who's written several interesting articles that are skeptical of the Supreme Court's treatment of questions of legislative fact.  (I think that the molecular biology in Myriad would qualify as a legislative fact rather than an adjudicative fact, but I am not 100% sure I always understand the distinction.) Given that it is not clear that this is something the Court does well, it may be better for it to do less of it.

I also appreciate Scalia's candor, and wonder if it reflects something about the Court's attitude in its relatively large recent patent docket.  Perhaps it is not a coincidence that the concurrence appears in a case where the Court seemed particularly eager to seize a middle position proposed by the government.  The Court now has several cases (Mayo, Bilski) where it seeks to intervene in the Federal Circuit's patent jurisprudence withouw necessarily having a super clear idea what it wants to replace it with.  Of course, the lack of a fully developed legal theory and the lack of a fully developed understanding of the "fine details" of the facts need not be connected -- but maybe they are.  Maybe part of the reason it is hard for the Court to do patent law is because it is hard to understand the underlying science in any of the disputes it actually wants to resolve.

Posted by Will Baude on June 14, 2013 at 09:30 AM in Intellectual Property | Permalink


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The description of the structure of DNA in the majority opinion is really painful for a molecular/structural biologist to read. A lot of BS, really. It's nice of Scalia to avoid blathering about stuff he doesn't understand.

He makes the point clearly that "complementary DNA (cDNA) is a synthetic creation not normally present in nature", and therefore can be patented. But I can't help thinking that if they actually understood how closely related cDNA is to mRNA, which is present in nature, maybe they wouldn't consider either one patentable.

Posted by: anon | Jun 17, 2013 5:05:34 PM

We can agree on the distaste for independent facts sections. Posner nicely dispenses with them.

Posted by: Anon | Jun 14, 2013 10:54:41 PM

Fair points, though I doubt we will come to agree.

This is probably also the place to admit to an idiosyncratic dislike of the "facts" sections of most judicial opinions. In my experience all of the relevant facts will be repeated later, when the Court actually does the analysis, and all of the irrelevant facts are irrelevant.

Posted by: William Baude | Jun 14, 2013 10:33:19 PM

I found Scalia's concurrence deeply annoying, for reasons I set out at some length in the Center for Law and Biosciences blog. Apart from his inconsistency in disclaiming knowledge of scientific (or other) facts (see his Kyllo opinion on both infrared detection and indoor marijuana growing), I think his opinion reinforces the idea of the Two Cultures and that judges need not worry their pretty little heads about that science stuff. Understanding enough of the facts to make sense of the case is a judge's job, whether those facts are about DNA, concentration in a local hospital market, the history of relations between the Navajo and the U.S. government, or how the internet works. I don't think it's too much to ask Scalia to have a high school understanding of molecular biology - I think it's his job. My rant continues for 1100 more words on the blog.

Posted by: Hank Greely | Jun 14, 2013 4:03:51 PM

To answer your question, Will: Scalia does reach that factual conclusion, which is the only factual conclusion he needs for the result.

I'm not saying he must state a position on the science that leads him to that conclusion, although presumably he has one. (He has affirmed the conclusion based on study rather any concession on Myriad's part, so far as appears.) I'm saying that the principles motivating him are off. To use the two you mention:

(1) Relevance of facts: It might be that the majority provides more background than is absolutely necessary to the decision (factual dicta, if you like, thanks to AOR's factual precedent), but if those are the facts that frame the majority's understanding, it's helpful to know them. They are relevant at least in that sense. This is particularly true in the lower courts, since the reviewing court can decide whether to upset the ultimate finding based on errors in the framing; bare conclusions are more insulated, even when no more justified. For the Supreme Court, it can be relevant for attacking a precedent across time in the Court itself ("That rested on an outmoded view of science," etc.), as well as for the Court's public accountability.

(2) Accuracy of facts: This goes back to my original point. It actually doesn't matter whether the facts are accurate as such, at least where the facts are based on the party's submissions.

Posted by: anon | Jun 14, 2013 11:52:46 AM

Will, I take your point that court decisions often include extraneous facts, but do you think this particular opinion by Justice Thomas went on longer than necessary? It's a pretty compact opinion, and I'm not sure how much more you could cut without making it difficult to understand the basis of the opinion. More generally, I'm not sure that it's just "window dressing" to "help readers understand what's going on."

Posted by: Jody Davis | Jun 14, 2013 11:43:04 AM

Josh, interesting post. I don't see how making historical judgments is necessarily any easier than making scientific judgments, and indeed Scalia is often criticized for neglecting the many complexities in the former.

In fact, the historical judgments are in many ways more troublesome. With scientific facts, experts testify in lower courts and are cross-examined, with fact-finding made by a trial court. Moreover, the precedential value of factual findings is typically limited to the actual parties.

Contrast historical "facts" found by judges, often without any direct testimony by actual historians, cross examination, or findings by a trial court. And since these "facts" are often embedded in doctrine, the consequences of mistake can be greater.

Posted by: Jody Davis | Jun 14, 2013 11:36:48 AM


As I understand Justice Scalia's position, he *does* take a view on the one factual question he sees as central-- what kinds of DNA are present in nature-- relying on the briefs, just as you seem to recommend.

Do you think he needs to take a view on any of the other facts discussed in the majority opinion, or are they just window dressing to help readers understand what's going on / to demonstrate the Court's sophistication?

Posted by: William Baude | Jun 14, 2013 11:17:09 AM

Good post Will. Relatedly, Scalia has relied on the complexity of patent disputes as a rationale for why originalist judges can look to history. http://joshblackman.com/blog/2013/06/14/scalia-judges-are-not-biochemists-but-can-be-historians/

Posted by: Josh Blackman | Jun 14, 2013 11:04:41 AM

I'm not sympathetic. Factual questions in litigation aren't about the truth as such; they are about the more persuasive account in light of the record. He doesn't actually have to know how these things work. If (as I think is true here) the parties *agree* on how they work, then that's how they work so far as the litigation is concerned.

Allison Orr Larsen's work is directly relevant to this point as well, and it suggests two things. If I'm right about fact-finding, then the Court's outside factual research that she describes is deeply suspect. But either way, she and I would both agree that factual findings should not have precedential value, though in the right circumstances they would be preclusive for a given party.

As a patent litigator without a science background, I also just don't think judges should have that much trouble with the science. If they do, it's because the lawyers do a bad job.

Posted by: anon | Jun 14, 2013 10:43:05 AM

I think what is bizarre about the concurrence isn't so much Scalia's admission of lack of knowledge, but the highly selective manner in which Scalia makes this admission. Why in this case? Molecular biology is certainly a complicated topic, but no more so in many ways than many of the complicated issues (scientific, economic, environmental, financial, medical health, etc.) courts routinely have to deal with. Courts rely upon experts all the time for factual determinations. It just seems odd that Scalia chooses so pointedly to qualify his opinion in this case.

And also the phrasing is a bit odd: "I am unable to affirm those details on my own knowledge or even my own belief." Is this the standard from now on, regarding all factual descriptions in a Supreme Court opinion?

Posted by: Jody Davis | Jun 14, 2013 10:09:33 AM

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