Chien: Recent History Suggests that Supreme Court will Rule Bilski’s Claim Unpatentable

Professor Colleen Chien (Santa Clara) has written an interesting new article on the importance of amicus briefs in patent cases. Her article is titled Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System and is available online at SSRN.

Bilski v. Kappos: Professor Chien reminded me that as Solicitor General, Elena Kagan authored both the US government’s merits brief in Bilski case arguing that Bilski’s claim is unpatentable and the US government’s brief opposing cert. The article reports that “in the last 20 years, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome.” Chien writes “If history is any indication, the Supreme Court will almost certainly follow the US Government’s lead and rule that the method is unpatentable and likely adopt some of its reasoning as well.” (Note that Bilski is a bit different because the Government is a party).

The abstract:

Over the last two decades, more than 1500 amici, representing thousands of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them representing landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system. It combines theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of who is interested in the patent system, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers have been instrumental in shaping the courts’ agenda; the Supreme Court was seven times more likely to grant cert, and the Federal Circuit eight times likely grant a petition for en banc rehearing, if urged to by an amicus. However, while certain briefs have been important, overall the balance of briefs on the merits have not had a measurable impact on the courts’ rulings. One exception has been the briefs of the US Government, which have been exceptionally prescient. Over the 20 years studied, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome. That is to say, in almost all cases, the Court affirmed or rejected the lower court holding when the Government told it to, and in one case, dismissed cert as improvidently granted when the Government recommended doing so. In terms of who files briefs and their agenda, the results are somewhat surprising. Although debates about the patent system are usually cast as a fight between the pharmaceutical and hi-tech industries, patent lawyers comprise a powerful interest group, filing the most briefs of any single group. In addition, among companies, what seems largely to determine how they advocate is their business model – non-practicing entities, for example, nearly always weighed in for the patentee and public companies, often against the patentee. These and other results have implications for those seeking to understand the patent system and those seeking to influence it.

Download the article.

285 thoughts on “Chien: Recent History Suggests that Supreme Court will Rule Bilski’s Claim Unpatentable

  1. Ima pretty sure that the term “the useful arts” does not have sucha cut-n-dried listing.

    Otherwise this blog would not be having this conversation.

    Ima pretty sure that any conversation started by Ned on historical matters will end up with a wrong conclusion. I think Ned’s ability to process changes in law stopped somewhen near 1952.

    Ima also pretty sure that the Supremes won’t be saying that a business method patent exception exists.

    One, it would be merely dicta, since it is not required for the Bilski case (Oh, we could all get Neddy, and make up holdings outa dicta).

    Two, the Supremes would then haveta actually deal with Congress specific intent questions in the fact that Congress themselves have said business patents are legit (again, we could get all Neddy and parse the crap out of legislative law).

    Course, we could all jump in our time machine and jam the loop at 1789, so that progress stays at that point. Oh wait, the time machine hasn’t been invented yet. Wait, everything’s been invented – OH NO, I’m stuck in my own conundrum.

    Andis, get my car. It’s parked on abstraction level three.

  2. he thinks that the ideas which we think are immaterial. And he’s likely right.

    He is right, when the “thinker” is 6.

  3. Ned the patents clause in the Constitution does not say that Congress shall not have the power to go patenting outside the “useful arts”. Rather, it says that it shall have the power to grant patent monopolies within the useful arts. Excuse my ignorance, but where in the Constitution do you get your explicit authority that Congress has no power to go beyond the useful arts? Is it implicit in the Constitution, or what?

  4. AI said: Ned,

    Since every patent at its core is a method of doing business, even going back to 1789, on what legal, scientific or technological basis could such a decision be made? Stern certainly has no such basis in his brief and the Supremes have nothing to fall back on.

    Yes, yes I know you can argue that there were no computers, information processing and complex business systems and such back in 1789 But doesn’t that defeat the purpose of promoting the progress of science and the useful arts? How can we “progress” when the only useful arts
    ( technology) that is patent eligible is the technology that was already discovered as of 1789?

    AI, you would be surprised that “useful Arts” was a well understood term in 1789. It was defined in current dictionaries, quoted by Stern. Also well understood were other “Arts,” such as Literary, Martial, etc.

    Stern does not argue that utility should be limited to only the useful Arts then known, but should extend to analogous arts known today. But he also argues that things well understood at the time not to be among the Useful Arts should not be among the Useful Arts today. Logically, this is quite sound.

    He then argues that methods of conducting business were among the odious monopolies at the time, and were not considered to be among the Useful Arts. If this was true, and I suspect he is right, this should end the controversy, as Congress would have no power to authorize the patenting of something that was known in 1789 not to be among the useful Arts.

  5. “Think about your software built as a separate chip.”

    I rather like the thought.

    “Stevens believes that thinking is something that occurs beyond our physical body. ”

    No, he thinks that the ideas which we think are immaterial. And he’s likely right. I know you have a hard time seeing the difference in these two statements, but you could try sometime.

  6. Mr Kaulins, thanks for:

    “Stevens was right in his dissent in Diamond v. Diehr in requiring that the actual process to which source code instructions are directed must itself be patentable, quite apart from the software and its execution on a computer.”

    which reminds me of the EPO position, allowing Beauregard claims when the “actual process” passes muster.

    I liked your “na Ja” too.

  7. Andis: A machine that reads an x-ray and determines whether or not there is a tumor. That is something that should not be eligible for patentability? You are confusing the form of the software. The software functionality would be better off being built as a stand alone machine than running on a general purpose computer. The software is only a short hand for a machine. (You realize that all electronic circuits could also be described in software and then executed by a general purpose cirucit.)

    The software doesn’t transform the general purpose computer per se. It transforms represented information. (and can interact with the physical world.)

    Stevens believes that algorithms are laws of nature. Stevens believes that thinking is something that occurs beyond our physical body.

    Think about your software built as a separate chip. Should that not be eligible for patentability? The line of basic should be eligible for patentability just as a cut log nailed together with another cut log should be eligible for patentability.

  8. “Source code” by itself makes “NOTHING” happen.

    Do people out there know how software works? Let’s compare source code and sheet music.

    Source code — compiler (or interpreter) — CPU — computer hardware.
    Sheet music — performing artist — instrument (or)
    Sheet music – music roll – automatic piano.

    As shown in the comparison above, the relative “distance” between source code and its ultimate execution on a computer is in fact one order of distance further removed than from sheet music to a musical instrument played by a musician or an automatic piano.

    As anyone who has ever done any programming knows, source code is simply text written in a given “language” that can be written on piece of paper just like sheet music. Simply putting such text to paper alone — or typing it onto the screen — makes “nothing” happen. Like any other language text, source code has to be read to be useful.

    Source code to do “anything” has to compiled or interpreted by special software written for this purpose. Most source code is written for compilation and a CPU (central processing unit) can not execute it if it is not compiled. A compiler transforms the source code into “assembly language” or “machine code” which the CPU can execute, whereas an interpreter, as the name suggests, translates the source code in an ongoing process to the CPU. This latter process is less efficient and less useful.

    The source code does not “transform” the CPU or the computer any more than sheet music “transforms” a musical instrument. After software is removed from a computer, the CPU and computer hardware can be reverted to the original default setting. RESET or TURN OFF to await new instructions. The musician puts his instrument back in his case, UN-transformed, awaiting new sheet music instructions.

    Even if computer software is slumbering on the hard drive, it does NOTHING until told to do so. It is merely a set of instructions which the computer is capable of executing — that is all.

    The essential problem with arguing for the patenting of software is that the source code consists simply of text which contains instructions written according to a given programming “language” and in which numerous algorithms are standard. Subsequently giving that source code patent status as an “invention” seems to give source code a character it does not deserve. Nor does the fact that this source code is compiled and then fed into a computer as a program make the source code an “invention” of a patent claimer, since the actual code used is not what he wrote at all. That is why many people who understand software are against software patents because they ask — where is the invention?

    I say this as someone who some years ago wrote a 10 megabyte commercially-sold adventure game — something I did for the learning effect.

    Here is a possible Basic programming language command: “if n=1, go to 2″. That is not an invention, even if you have thousands of lines of such instructions.

    The fact — as in Bilski — that certain types of instructions can be written down as source code, compiled and then fed into a computer for execution by the CPU does not make a software program either a “process tied to a machine” or a “transformation” of anything.

    Software exists independent of “a machine” – and – until compiled — is not even usable by that machine. Software can be used by not just one but many separate computers for instructions — but those computers are not transformed — since they revert back to their original status after use. Or you simply format the hard drive.

    That is why Stevens was right in his dissent in Diamond v. Diehr in requiring that the actual process to which source code instructions are directed must itself be patentable, quite apart from the software and its execution on a computer.

    Na ja, when Bilski comes, we will see.

  9. His idea was to use the other guy’s idea.

    Boring and trite IANAE – the “House” analogy has already been obliterated.

    This is so beneath your level of posting skill, that I think an imposter is at work here. Will the real IANAE please show up.

  10. A machine that does what people do. How could that not be eligible for patentability?

    It is. Whoever invented the machine should absolutely get a patent for it.

    Whoever told the machine to do what it was built to do, not so much. His idea was to use the other guy’s idea.

  11. Show me one patent NOT “related” to conducting business?

    Do you mean “show me one patent where the invention is not related to a method of conducting business”? Or do you mean “show me one patent for a commercially useless invention that the inventor hasn’t even bothered to try to license or sell or make any money from”?

  12. Besides, IANAE, a computer is executing instructions, but it is an abstraction level. The program defines a machine and the general purpose computer is used to emulate that machine. If a specific computer is built for a program the program can be much more efficient and smaller.

    A machine that does what people do. How could that not be eligible for patentability?

  13. So, let’s see when I follow instructions (let’s call it a method) of making a pharmaceutical does that mean I am infringing?

    Probably. It depends on the claim. If you’re carrying out the claimed method, you’re infringing. If you’re carrying out a method that produces a claimed product, you’re infringing.

    Does that infringement make you a different person? What if the defendant identified in the complaint is the old you?

  14. Posted by: IANAE | May 19, 2010 at 02:04 PM:The patent is. But the term “business method patent” refers to a patent wherein the disclosed/claimed invention relates to a method of doing business.

    __________

    Show me one patent NOT “related” to conducting business?

    :: Mooney/IANAE Silenced::

    Now that you have been intellectually backed into a corner, as usual, you can change into another sock puppet and start waxing about airplane rest rooms and such.

  15. MM>>What is the invention?

    Ding, ding, ding. Now think about that question some MM. And answer it for yourself.

    >>when you’ve been instructed to file a patent >>application, does that instruction in your >>brain (a prosecutor-readable medium) make you >>a different person?

    So, let’s see when I follow instructions (let’s call it a method) of making a pharmaceutical does that mean I am infringing?

  16. The USA should really do something about all that sneezing, now that it has access to health care.

  17. Posted by: MaxDrei | May 19, 2010 at 06:25 AM: Funny, isn’t it, AI, how each of us sees what we want to see, and disregards the rest.”

    _________

    No, that would be called subjectivism, something used for viewing/appreciating art, poetry, music and other copyright protected expressions. A business method is a technological process. A series of steps that is executed the same way every time and when done according to instructions produces the same exact result. It’s how we get to the moon, make toast, and get the people through the line at McDonald’s.

    If indeed the UK does not understand the difference between subjective expression and objective execution then perhaps that’s the reason you are not number one and the USA is.

    GOD BLESS THE USA!

  18. its purpose is BUSINESS!

    The patent is. But the term “business method patent” refers to a patent wherein the disclosed/claimed invention relates to a method of doing business.

    I assume you know that and are just trolling as usual, so this will be my last attempt to explain the obvious to you.

  19. Posted by: IANAE | May 19, 2010 at 09:44 AM wrote:
    That is a ridiculous characterization.

    Maybe the patent is obtained for profit (as it should be), but that doesn’t make the invention itself a business method in any meaningful sense. A method of making horse shoes is a method of crafting a mechanical article. You may well intend to sell that article, but your patent is no more a business method patent than it is a gene patent simply because the patented article will wind up nailed to an animal.
    _______________

    WTH? Your strained, twisted logic, if it can even be called logic, is what’s ridiculous. It does not matter what category the invention falls under, or what the motivation was for “obtaining” it, whatever that means.

    Whether a patent is a Gene Splicing Method, Horse Shoe Making Method, or a Method of Hedging Funds for that matter, its purpose is BUSINESS!

    Wasn’t it Judge Rich that said something to the effect that just because an invention conducts business is no reason to deny it’s patent eligibility?

    Smart man!

    You, Mooney/IANAE can irrationally deny it all day long but you can’t refute it with any fact, science, or technology.

  20. NWPA So, if I build a machine that moves around viles and then program it to make pharmaceuticals then I guess making pharmaceuticals is now like music and not eligible for patentability.

    What is the invention? The machine? The method of moving viles? Or the instructions you are feeding the machine? Or the method of instructing the machine? Or the method of writing the instructions?

    Learn to write clearly, NWPA. I know clarity doesn’t matter for your software apps, but it helps around here.

  21. but, but, but, the information is transforming.

    Oh, right. A new program makes a prior art computer into a whole new patentable computer. Because it’s been told to do something different.

    Tell me, when you’ve been instructed to file a patent application, does that instruction in your brain (a prosecutor-readable medium) make you a different person?

  22. I can hear MM say, but, but, but, the chemicals are transforming, but, but, but, the information is transforming. Just sad that you keep rehashing these same arguments.

  23. NWPA,

    You expect too much – some of these guys cannot handle parking leveles, much less abstraction levels.

  24. It is quite revolutionary what happened with computers.

    Indeed. The guy who invented the computer is clearly entitled to a patent.

    Also, the guy who invented the transistor should get some credit. Wonderful ideas, both.

  25. It is quite revolutionary what happened with computers. A level of abstraction was built into the process of inventing. You boys just can’t seem to get your head around that.

  26. So, if I build a machine that moves around viles and then program it to make pharmaceuticals then I guess making pharmaceuticals is now like music and not eligible for patentability. We can get MM’s aunt to make all the new inventions anyway.

  27. Of course, if any of you bright boys want to handle the court case I laid out on a similar topic, y’all welcome now (ok, stole – but I did add some jazzy steps) yous can ask 6 where it is (he avoided it so weel, he gotsa have it memorized).

  28. Of course I’ll pass Maxie – this sounds like NAL’s terrain and I don’t have that “four-page-legal-journal” dissertation to whip out.

  29. ping Sheet music doesn’t make things happen.

    It does if you feed it into a computer that reads sheet music. Is is it patentable, in that case?

  30. It’s a pity that Wilton didn’t cite those old metal machine cylinders with a specific pattern of holes in them, that transform a silent musical box into a machine tinkling out a familiar melody. Now they really do “do” something.

    Tell me I’m wrong, ping. Or are you going to pass on this one too?

  31. Software is to computers as sheet music is to musical instruments.

    What wonderful crap. Sheet music doesn’t make things happen. Sheet music doesn’t transform an instrument. Let’s just ignore reality altogether with statements like this.

  32. But is there any response, pro or no, to my hypothesis that the reason the USSCt follows the SG 95% of the time on patent cases is because the justices are all technophobic and they basically don’t have a clue what it’s all about, so they just tuck in behind the SG?

    That’s been addressed by a few people already. When the SG is an amicus, it’s essentially giving a run-down of what the current law is. The Supremes tend to follow what the current law is. A high correlation is to be expected. It doesn’t necessarily mean anything sinister is going on.

    When the SG is a party, it takes the government’s side. Sometimes it wins, sometimes it loses. You won’t see a 95% correlation in those cases.

  33. I dare say you’re right, IANAE. I don’t really mind. It’s just that, being a European patent attorney, I have one foot in science and the other in the law. I observe how international peer-reviewed science is, the useful arts are, the glorious English language is. Having been involved in the Markman case at SCOTUS (were there jury trials in patent cases in England?), I like to think that patent law is a little bit international too.

  34. Umm . . . ‘cuse me. It was my quite innocent post that INANE responded to that got this major tiff energized. I am so gratified when I can contribute to a century thread on any blog. Well done all you 10th Amendment aficionados.

    But is there any response, pro or no, to my hypothesis that the reason the USSCt follows the SG 95% of the time on patent cases is because the justices are all technophobic and they basically don’t have a clue what it’s all about, so they just tuck in behind the SG?

    I raise this issue again with the sincere hope that we can do a double-century on this thread. Dennis will thank me in his will.

  35. Bad joke, read the cases involving “strings” attached to government money, especially the cases the resulted from “revenue sharing.”

    Congress can spend money on the general welfare and attach strings. That is all I am saying.

    Now, if you disagree with the “string” cases, let me know.

  36. This conclusion you are coming to, ping, that you will have to pass. It’s very welcome I must say. Mark Twain would surely approve.

  37. Even if SCOTUS chooses totally to ignore the 30 years of EPO jurisprudence summed up in G3/08, I doubt it can be quite so dismissive of the logic behind that speech in Australia.

    I think you’ll be unpleasantly surprised at how dismissive Americans in key decision-making positions can be.

  38. Since this distinction between cabinet-making and the reduction to material form of creativity in literary and artistic thought is up and running, I wonder if Paul Cole can provide a link to the recent speech in Australia by Lord Leonard Hoffmann (a South African). He has just retired as a judge of the UK Supreme Court, where in recent years he has been single-handedly creating a string of seminal patent decisions.

    So, no taint of “European” clinging to him then.

    But in that speech he does elegantly stiletto the difference between the useful arts and the finer arts.

    Even if SCOTUS chooses totally to ignore the 30 years of EPO jurisprudence summed up in G3/08, I doubt it can be quite so dismissive of the logic behind that speech in Australia.

    Soon we will know.

  39. Can’t you come up with something that makes me think

    Wow, now that’s a challenge. Not sure I’m up to it Maxie, cause I haven’t seen any evidence that you can actually think. Something about blood and stones comes to mind.

    Ima gonna haveta pass – maybe my main man IANAE can take this one.

    6,
    software market probably wasn’t one that was going to pay my bills

    And MickyD’s is doing so much better for you too.

    come from a cabinet making background in my far-far off past
    Hiding in one while watching Mommy doesn’t count.

  40. “6 has obviously never written any real software. ”

    Guess that depends on what you mean by “real” software. I co-wrote some software to program a machine that a business would buy if that’s good enough for you. Fyi, I was the one who “reduced to practice” the programming enough to where it would have been ready for patenting in today’s lolable environment. The fact that the whole market was about 15 items large and would probably only pay less than the microcontrollers cost notwithstanding, is that “real software”? Or do I have to write for a larger market for it to be “real”?

    Needless to say, I quickly learned that the software market probably wasn’t one that was going to pay my bills, so I decided to go ahead in my studies in the useful arts instead.

    The fact of the matter is, tardface, that I’m more than qualified to comment on your software writing nonsense being not within the useful arts, or even anywhere close to them. I do, in fact, come from a cabinet making background in my far-far off past, and could make you one were I so inclined to. Funny enough, when my dad (one person who helped teach me to make cabinets) was done making cabinets as one of his day JOBS, he’d come home and PAINT, WRITE SOFTWARE, or PLAY MUSIC for LEISURE. Funny the distinction there huh? The line just so happened to fall right down the useful arts line. Sure, he made some $$$ off the painting and music, but he only did them for leisure.

    Come to think of it, maybe what I should have done was taken my invention, abstracted it to the extreme, patented it, and then trolled the f out of MS et al. once they made something even remotely similar to the overbroad abstraction I came up with for my software. Why bother with making any products to sell when MS et al. can make similar ones and I can just take a cut out of that?

  41. ping, nice retort about the tongs and the bag. A bit sad though, and it adds no value to the thread. Can’t you come up with something that makes me think (rather than something that just makes me laugh).

  42. Awww, poor pingey wingey, conversation doesn’t go his way and he has to resort to changing the topic to even more nonsense.

    Face the end to your shinanigans like a man fool.

  43. “software aint shxt”

    6 has obviously never written any real software. The kind that actually controls machines.

    Come to think of it, all the evidence we’ve seen here suggests that 6 has never written anything of any value.

  44. 6,

    Let’s not hear any of your nonsense, OK?

    You are lucky that I am not a vindictive blogger and chase you back to the court room. Are you still dreaming of Mommy and those handcuffs?

  45. “Except Maxie, software writing is a far cry closer to the cabinent maker than to the painter or musician. Software does things. It is functional.”

    Hardly on both accounts. Sofware writing is nowhere near closer to cabinet making than to painting or music writing/playing. One involves making something, the other two involve mere writing or use of an instrument. Guess which one software WRITING/computer USING is closest to?

    Furthermore, to address your reason why it supposedly is: Software itself ain’t sht, and it sure ain’t functional. It ain’t nothing but a work o artistic value on its own (and very poor artistic value). Take your windows Vista and just try some sht on your old Tandy. The only thing that makes software worth a dam is the computer makers (aka your cabinet makers).

    It’s like in the olden days making writing a poem in a special way patentable (or a cabinet inscribed in this special poetic fashion) because it could be argued that this poetic writing method is “functional” because it happens to make the front of a cabinet be worthwhile as a bottle opener and then allowing the claim thereto based on what the poem states, or the “functionality” as a bottle opener (where the art makes no connection between the poetic style and the functionality of a bottle opener)rather than the structure of the portion of the cabinet that was actually a bottle opener portion.

    Ridiculous nonsense, just as it would have been back in the day.

  46. And Ned, the general welfare? Seriously?

    If Congress could make laws on any topic “for the general welfare”, then why bother with the rest of the consitution, speficially the enumeration of powers and the 10th amendment?

    General welfare clause? Think a little.

  47. IANAE, I’m glad I don’t live in your parallel universe. I think I’m a lot more successful by knowing what is true and what is not.

    The fact of Obamacare is that you’re asked to pay premiums that federal mandates are causing to skyrocket. If you don’t pay, you’re fined, and if you don’t pay the fine, jail. It’s that simple. So you and your fellow progressives/statists/communists, whatever you call yourselves these days, will offer to solve the problem you created by going to single payer system. That was always the intent, and we both know that’s the truth. The dishonesty is just getting old when it’s so obviously not working and a waste of time. We’re grownups here, you can drop the facade.

  48. From my understanding, citizens under Obamacare will be required to have health insurance or else pay a penalty.

    I’m sure it won’t be long before one of those poor, oppressed people who was cruelly forced to have health insurance against his will challenges the law in court.

    You hear it all the time. Ordinary people taking to the streets to complain that they have too much health insurance, and they wish people would let them die homeless in peace and agony on their own terms.

    Wait, can people still refuse medical treatment under the health care bill? Presumably there’s a penalty for that.

    Since every patent at its core is a method of doing business,

    That is a ridiculous characterization.

    Maybe the patent is obtained for profit (as it should be), but that doesn’t make the invention itself a business method in any meaningful sense. A method of making horse shoes is a method of crafting a mechanical article. You may well intend to sell that article, but your patent is no more a business method patent than it is a gene patent simply because the patented article will wind up nailed to an animal.

  49. Maxie,

    I try not to use any lens when examining your contributions – mostly tongs and a nice plastic bag.

  50. Night, agreed. But when I wrote “technical” I had in mind not just 101 “technical character” but also 103 “technical effect”. Never mind, private joke.

    ping, poetry and paintings and music can move the world, not just electrons in a data processor. Art has a valuable function. It “does things” too.

    My lens is not perfect, I agree. Did I say otherwise?

    But how about that lens you are using, to examine mine. Are you saying it is perfect?

  51. “Bilski’s method-if claimed on a machine–should be eligible for patentability.”
    As it would be in Europe. Except in Europe it would then be thrown out on obviousness for lack of any novel features beyond the bare, patent-ineligible method; i.e. for lack of any “technical” contribution to the art.

  52. Today, we have writers of software, trying to earn an honest crust, also just as much in business as the portrait painters and piano teachers of yore.

    Except Maxie, software writing is a far cry closer to the cabinent maker than to the painter or musician. Software does things. It is functional.

    It appears that your lens is the distorted one.

  53. Max: a machine that processes information is “technical.” A machine that can do what a person can do.

    Bilski’s method-if claimed on a machine–should be eligible for patentability.

  54. Funny, isn’t it, AI, how each of us sees what we want to see, and disregards the rest. We agree there were people in business in 1789, trying to earn an honest crust, not just by making nice tables but also by giving piano lessons or painting portraits. I do not accept that the teachers and painters were any less “doing business” than the cabinet makers.

    Today, we have writers of software, trying to earn an honest crust, also just as much in business as the portrait painters and piano teachers of yore.

    Even had there been computers in 1789, the Constitution would still have said (and meant) “useful arts”, thereby excluding much of the business activity of 1789.

    My point is that it is unconvincing to me when you invoke the belated invention of the computer to subvert the plain meaning of “useful arts” into “any form of business”.

    Take the European Patent Convention, written in 1973, after the invention of the computer. Business methods (as such) out, but “all fields of technology in. I do not accept that “technical” is obsolete, as a litmus test of patentability. It goes back to a root that is in common with the “useful arts” expression in the US Constitution.

    Sorry, but only people with an axe to grind see it otherwise, through a lens that distorts their view.

  55. Posted by: Ned Heller | May 18, 2010 at 02:35 PM Wrote: Night Writer, I don’t think they will have to decide the full scope of what comprises the “useful Arts” to decide that “methods of doing business” were not within the useful Arts in 1789.”

    Ned,

    Since every patent at its core is a method of doing business, even going back to 1789, on what legal, scientific or technological basis could such a decision be made? Stern certainly has no such basis in his brief and the Supremes have nothing to fall back on.

    Yes, yes I know you can argue that there were no computers, information processing and complex business systems and such back in 1789 But doesn’t that defeat the purpose of promoting the progress of science and the useful arts? How can we “progress” when the only useful arts
    ( technology) that is patent eligible is the technology that was already discovered as of 1789?

    And as far as methods of doing business is concerned think about the typical inventions of the 18th century such as making horse shoes, harnesses for horses, plows and new ways to plow fields and the like. You think people where discovering and improving these types of inventions for fun and leisure? For liberal arts and higher learning? Maybe as an exercise of pure creative expression? No way! These inventions where discovered for one purpose and one purpose only, as a way to do business and make money! Cold hard in your face commerce.

    And it’s worth noting that these inventors of 1789 were for the most part small business owners trying to create jobs for themselves and their families and communities. It’s irrational that some want the SCOTUS to take away from small business owners of today the very Constitutional Rights and tools of commerce that helped make this country great.

    So I leave you with this question, shouldn’t the small business owners of the 21st century enjoy the same rights and tools of commerce afforded by the patent system as the small business owners of the 18th century?

    I say YES! Our economy, our country, our very way of life depends on it!

    God Bless The US Patent System!

    God Bless America!

  56. “it my still be unconstitutional because it amounts to a per capita tax, which can only be levied equally among the entire population. ”

    The income tax does that too, but thanks to the infinite wisdom of the courts nobody holds them to that.

  57. IANAE, the line crossed in the line separating regulation from spending.

    IIRC, the US government can give private institutions federal assistance and then require them as a condition to abide by government regulations. What the government cannot do is require you to accept government money against your will, or to regulate beyond the enumerated powers without your voluntarily accepting government money.

    From my understanding, citizens under Obamacare will be required to have health insurance or else pay a penalty. There seems to be no consideration of the specific financial circumstances of the individual and whether he or she can afford health insurance without government assistance. Now if this is correct, the law may be unconstitutional if it is not within the enumerated powers, and, even if it is, it my still be unconstitutional because it amounts to a per capita tax, which can only be levied equally among the entire population.

  58. No IANAE.

    My wife is from a foreign land. I always joke with her that I would have no trouble getting along in her country without a translator as all I would have to do to be understood would be to speak louder.

  59. The problem with the Obamacare is that it appears to have cross the line.

    Is it a line that Obamedicare doesn’t also cross?

  60. Constitutional scholars, it is one thing to spend money and quite another to regulate an activity. The one requires money, the other requires a constitutional power.

    I think Congress can spend money on the general welfare and even attach strings. But what it cannot do is tell the states and the people who do not accept the money what it can or cannot do unless the activity is within the powers granted to Congress or the president.

    The problem with the Obamacare is that it appears to have cross the line.

  61. I hope Barry invites you guys to the White House for a beer.

    Not likely. I hear Barry hates white people.

    But I know he’s not averse to serving imported beer, so if invited I would accept.

  62. “Wilton” (Mooney)

    “developing a brilliant business model”

    BWAHAHAHAHAHAHA.

    You mean appropriating CP/M and having family money connections?

    Besides, what does it matter that Beck had a little trouble in his life. Makes him a whole lot more real.

    “what’s he been right about”

    Just about everything, Mooney.

  63. But if we tell Mooney that socialism is wrong, all he will do is stop listening. We need to do better.

    Have you tried telling him louder? It seems to work on Republicans and foreigners.

  64. Mooney is a socialist. He admits it. But if we tell Mooney that socialism is wrong, all he will do is stop listening. We need to do better.

  65. The 10th amendment says that the GOVERNMENT DOES NOT HAVE THE POWER TO PROVIDE HEALTH CARE TO ALL AMERICANS because it’s not a power specifically delegated to the Federal govn’t.

    Great, we’re right back to first principles. Whose job is it to do something about this alleged violation of the 10th Amendment?

    That’s right, the courts. Don’t complain to us, complain to them.

  66. Conservatives: what did Attila the Hun stand for? The mass slaughter of civilians until the enemy surrendered.

    So why is it, then, that Rush Limbaugh sits, according to his own words, on the Attila the Hun chair? I don’t get it.

  67. Mooney, on the other hand, has a deep emotional investment in the class warfare myth, in the “money/prosperity is bad” myth, in the “Democrats are not Socialists” myth, and so on.

    That’s why he wears Birkenstocks and worries about gay marriage.

  68. RWA: “There’s a very good reason why the man never graduated college.”

    Come to think of it Bill Gates also had a “very good reason.”

    RWA, really? You are going to compare Glenn Beck to Bill Gates? Tell me, what reason did Beck have for failing to go to college until he was in his 30′s and then dropping out after one class in theology? Then, once you’ve recited the reason, tell me why it should be in any way comparable to developing a brilliant business model for technology that was in its infancy?

    BJA: I love the ad hominem attacks on Beck. “He’s dumb.” “He’s totally insane.” “There’s a reason he didn’t go to college.” So what exactly has he been wrong about?

    Perhaps the better question is to ask what he has been right about.

  69. “because you said you were for federal legislation providing health insurance to the poor”

    Wasn’t me.

  70. Can we throw a little patent law in here on this debate? All this political party stuff puts me to sleep. It’s not as if both sides wouldn’t rip you off in your sleep.

  71. Mooney, yes, please do come up with something real. Bwhahaha. You’re asserting that he’s wrong about the overarching effect of the outcome of a lawsuit? Bwahahahaha.

    KSR provides clear guidance. Well, the court says it, so it must be true, right?

  72. RWA, because you said that you were for federal legislation providing health insurance to the poor.

  73. BJA So what exactly has [Glenn Beck] been wrong about?

    Hmmm… where to start? I guess this will do as well as any. Remember when the Iowa Supreme Court declared that the state law banning gay marriage violated the state Constitution? Here’s what Glenn “Legal Expert” Beck said on FOX News, April 13, 2009:

    this case is actually about going into churches and going in and attacking churches and saying you can’t teach anything else.

    Insofar as the Iowa Supreme Court expressly stated otherwise, he was dead wrong about the case. Let me know if you need more examples. I’ve got a lot more lined up, all of which involve Beck playing on the fears of ignorant teebugger types.

    Really, though: if this is news to you, you’re probably too emotionally invested in the myth to handle the truth.

  74. Mooney, I can understand if you lacked the upbringing that would have allowed you to appreciate the financial wisdom in buying gold.

    Did I say gold? I said “gold coins.” You know, like the gold coins that Glenn Beck’s buddy Goldline International advertises in commercials during Glenn Beck’s show. You know the show, right? It’s the one where Glenn Beck tells people how our “socialist” President is trying to destroy the United States, therefore people should invest in gold before it’s too late.

    God Bless America.

  75. And RWA, you may think we’re on the same side, but we’re apparently not. I oppose medicare, social security, Obamacare, earned income credits, welfare, unemployment insurance, and the thousands of other handout programs and systems that remove individual freedom and responsibility. There is NO authority in the Constitution for such programs at the FEDERAL level, and I am generally against things that are illegal.

  76. “There’s a very good reason why the man never graduated college.”

    Come to think of it Bill Gates also had a “very good reason.”

  77. IANAE,

    Ah, now you’re showing your colors. “I also don’t know what most Republicans would have supported…”

    Does it matter? The 10th amendment says that the GOVERNMENT DOES NOT HAVE THE POWER TO PROVIDE HEALTH CARE TO ALL AMERICANS because it’s not a power specifically delegated to the Federal govn’t. So, you previously said exactly what you meant: the government can take any right they want at any time.

    I love the ad hominem attacks on Beck. “He’s dumb.” “He’s totally insane.” “There’s a reason he didn’t go to college.” So what exactly has he been wrong about?

  78. “…they kept refusing to have an honest public debate about what would be a reasonable way to give everybody health care.”

    The sad part is INSANE doesn’t even realize let alone understand the fallacious reasoning contained in this very statement.

    Who said it was a good idea to “give everybody healthcare?” Why not just replace “healthcare” with “a brand new Mercedes?” Where does the government’s generosity with the taxpayer’s money end? I’ll tell you, when the productive element of society is bled dry and there is no more to “give.”

  79. Mooney, I can understand if you lacked the upbringing that would have allowed you to appreciate the financial wisdom in buying gold. You might try reading something like “Rich Dad/Poor Dad” and read the “Rich Dad” part this time around.

    We can also now better understand the profound bitterness that seeps from every sentence you have ever posted here on PatentlyO. Now that you have admitted your proletariat upbringing, we can all understand that your values are severely skewed when it comes to issues like prosperity.

    Heck, we can even understand the bitter partisanism so painfully evident in your attacks against dead presidents.

    So you go ahead and get it all out of your system. We understand that it may take a lifetime.

  80. I do not know of any Republican that would have opposed this in principle.

    Lucky for you that you have no obligation to conduct a search.

    Why doesn’t someone simply ask the like of Glenn Beck this question?

    If only there were some way of knowing what Glenn Beck thinks.

  81. IANAE, some of what you said is true, some not so true about what happened. But speaking only for me, I would have supported a bill to give the poor basic health insurance. I do not know of any Republican that would have opposed this in principle.

    But the proof is in the pudding, as they say. Why doesn’t someone simply ask the like of Glenn Beck this question?

  82. By the way, anyone that tries to have a logical debate by channelling Glenn Beck needs to have his head examined.

    I don’t think I’ve ever seen anyone attempt logical debate by channeling Glenn Beck. Least of all Beck himself.

    I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance. But that is not what happened, was it?

    I don’t know if that’s what happened. I also don’t know what most Republicans would have supported, because they kept refusing to have an honest public debate about what would be a reasonable way to give everybody health care. And then they whined that they never got a chance to debate the issue. And then they whined about the bill passing by majority vote because that was somehow undemocratic.

  83. Ned I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance.

    BWHAHAHAHAHAHAHAHHAHAHAHAHHAAHHAHAAHAHAHAAHAHA!!!!!!!!!

    Hey Ned: Glenn Beck just called. He said you should invest in gold coins today.

  84. IANEA I remember distinctly how the government never did stuff like imprisoning people without due process or tapping phone lines or anything else it thought it could get away with?

    Well, if they did do anything of that it was to swarthy, Muslim types. Real Americans like RWA weren’t under attack like they are now. Heck, it’s still illegal in most states to carry an open firearm into a tavern!!! So much for Constitutional freedoms. It’s worse than Dachau.

  85. IANAE, you clearly do not understand why people are upset about Obamacare.

    I think most Republicans would have supported a narrowly focused bill to give the poor basic health insurance. But that is not what happened, was it?

  86. By the way, anyone that tries to have a logical debate by channelling Glenn Beck needs to have his head examined. There’s a very good reason why the man never graduated college.

  87. Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    Yes, I imagine that when someone takes things to their logical absurdity, one can only imagine the logically absurd. Perhaps you should be more concerned with what would happen in practical reality.

  88. You are saying that government does whatever it can get away with with regard to individual rights and doesn’t even have to be a good citizen in society, but it DOES.

    Yes, I remember distinctly how the government never did stuff like imprisoning people without due process or tapping phone lines or anything else it thought it could get away with.

    But now that a “communist” is in charge and destroying the country by letting people see a doctor, aren’t you glad he’s not the one in charge of making sure you have your rights?

  89. “Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught.

    It’s not like that at all.”

    But it IS like that. And you’re the one who said it.

    You are saying that government does whatever it can get away with with regard to individual rights and doesn’t even have to be a good citizen in society, but it DOES. And it is exactly like saying that citizens can do whatever they can get away with until caught and punished by the state.

    Although some people live that way (and we call those people criminals), it is not the ideal. Not even close.

  90. BJA, the Supremes are effectively applying the 10th Amendment through “substantive due process” and its protection of liberty, which includes the so-called right to privacy. While at one time saying that the Lochner era was dead, that really only applied to the use of SDP in cases involving “freedom of contract.” If however an individual right long recognized by Western Civilization as fundamental is invaded by law, the Supremes will give it strict scrutiny.

    This is essentially the 10th Amendment in operation.

  91. And I’ll tell you the point of OUR government. It’s to create a society that RESPECTS and PROTECTS individual liberty and freedom. The point is to let individuals do whatever they please so long as their not trampling the rights of others. The job of the government is to provide a set system for redress when someone’s rights are trampled and for discouraging such trespasses. Else, you’re leaving it up to me, the individual, to protect my own rights. That’s a terrible, terrible choice if you infringe on any of my rights. Trust me, you’d much rather deal with the govn’t then me left to my own after you’ve wronged me. Of course, there wouldn’t be any long, drawn out court proceedings, so if you’re all about speed, then it may indeed be your preferred system.

  92. “Sorry, meant to say “within its powers”. Should have thought that would be obvious to you, and you could respond to my actual point. But thanks for the nitpick.”

    Posted by: IANAE | May 18, 2010 at 02:43 PM

    The only other point I see is that the only rights you have that the Federal govn’t cannot infringe are whatever the supreme court says they are, regardless of what the text of the Constitution says.

    Which, as I said, flies in the face of the 10th amendment and the rule of law (because if the law isn’t what’s written in the statutes, then can anyone really know the law).

  93. IANAE clearly does not understand the 10th amendment, as BJA points out.

    Rather than a no-holds-barred, scorched-earth, tug-of-war, death match between government and the people, which is the picture painted by INSANE, I believe the government has a duty not only to acknowledge and respect individual rights as the government of DC did with respect to individual gun ownership, but to create an environment where those rights will not be trampled, and if they are, then to deliver sanctions. All powers not specifically enumerated are reserved to the states and to the people.

    In INSANE’s loopy world, the government tramples all your rights whenever possible and its up to the tension of “checks and balances” to clean up the mess after the fact.

    Not on my watch.

  94. Wait, I’m going to attempt to decipher your ridiculous ramblings:

    “It’s not like that at all. I don’t expect a Beckerhead like you to understand the distinction, or even admit it if you did. The government is not a society. It is a delicately balanced set of man-made institutions, designed in the noblest of American spirits to succeed through the constant selfish conflict between adverse interests. You know, like capitalism. You guys like capitalism, right? In capitalism nobody is ever expected to “do the right thing”.”

    Removing the rubbish:
    “I can’t stand Beck showing me what my idols said and how it conflicts with reality. The government is not a society. It is a set of institutions designed to succeed through conflicts of adverse interests. Just like capitalism. In the govn’t, no one is ever expected to “do the right thing.”"

    Seriously? Did you ever read during school, or did you just take your re-education that well? That explanation was COMPLETELY meaningless and CERTAINLY nothing that someone would be willing to give up their fortune, family, and life to create like our founders were. It’s absurd.

  95. IANAE, since the govn’t doesn’t exist to look out for our individual rights, then why does it exist? What is its purpose?

    Really?

    If you haven’t read the constitution by now, I’m not going to type it out for you. Google it.

  96. The 10th amendment to the Constitution disagrees with you.

    Sorry, meant to say “within its powers”. Should have thought that would be obvious to you, and you could respond to my actual point. But thanks for the nitpick.

  97. IANAE, since the govn’t doesn’t exist to look out for our individual rights, then why does it exist? What is its purpose?

    This ought to be a VERY interesting answer.

  98. IANAE, always the reliable statist.

    The 10th amendment to the Constitution disagrees with you.

    Stick to patent law, you seem to know more about it than the law in general.

  99. Opressive government that “isn’t supposed to want to respect your rights” == just fine

    Nobody’s saying you don’t have rights, just that it’s not the government’s job to look out for them.

    If you went to a shoe store and tried to buy a car, would you conclude that cars don’t exist? That society has decided that it’s okay not to sell cars? Or that you’d gone to the wrong place for what you want?

    Maybe you’re confused because Republicans work so hard to appoint judges who will make/overturn the decisions they want, but if you read the constitution you’ll note that the branches of government are supposed to be separate and independent and have different powers.

    Pretty basic stuff, really.

  100. Night Writer, I don’t think they will have to decide the full scope of what comprises the “useful Arts” to decide that “methods of doing business” were not within the useful Arts in 1789.

  101. Figures we’d here from Monkey, er, Mooney (IANAE).

    Let me see if I have this right.

    people doing the right thing == boogey men out there with pointy hats and robes

    Opressive government that “isn’t supposed to want to respect your rights” == just fine

    You might want to open up some windows down there in mom’s basement. I think the Radon fumes are further rotting your crack-addled brain.

  102. you aren’t fit to lick the bottom of Glen Beck’s shoes.

    Heh. How ever did I know you were channeling him?

    I’m glad you don’t think I should lick him. I didn’t really want to.

    Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught.

    It’s not like that at all. I don’t expect a Beckerhead like you to understand the distinction, or even admit it if you did. The government is not a society. It is a delicately balanced set of man-made institutions, designed in the noblest of American spirits to succeed through the constant selfish conflict between adverse interests. You know, like capitalism. You guys like capitalism, right? In capitalism nobody is ever expected to “do the right thing”.

  103. Well, you boys and girls have had the discussion without me, and I think my point of view has been made. I do regret, however, the vitriol that crept into the discussion.

  104. RWA Maybe that’s the way it works in whatever filthy ghetto you live in, but in my neck of the woods, people actually try to do the right thing.

    LOL. And when they aren’t trying, they at least have the decency to put on a pointy hat and a white sheet so people aren’t confused.

  105. For your beneifit, I have included what I see as the fatal flaw in your “reasoning.”

    The government isn’t supposed to want to respect your rights

    I would say that if we were living in Venezuela, you might be right. But here, I would say you are flat out wrong (no surprise there). What Cowboy is saying is that it is troublesome when the government fails to acknowledge its limitations and actually admits to want ever expanding jurisdiction coupled with a desire to have superior broad powers over your narrow rights.

    Your statement is like saying, Americans shouldn’t want to obey the law, but do because of the threat of getting caught. Maybe that’s the way it works in whatever filthy ghetto you live in, but in my neck of the woods, people actually try to do the right thing.

  106. IN(S)ANE, you aren’t fit to lick the bottom of Glen Beck’s shoes. He is just a convenient hobgoblin that is scary because he points out in great detail all that is wrong with your mindset and the severe flaws in the way your “reasoning” works.

    Glen Beck isn’t the problem. M0r0ns like you are.

  107. Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    1. Thank you, Glenn Beck.

    2. What a surprise, statements extended to their logical absurdity result in an undesirable outcome.

    3. Maybe you didn’t read the part of my post (or the constitution) where it says that those constitutional rights exist precisely to prevent a totalitarian state. The government can legislate all the way up to the edge of your rights, and the court tells the government where to stop. If there’s no right standing in the way, the government can make any law it wants, subject to any individual legislator’s desire to be reelected. It’s always been that way.

  108. “and nearly 1.5 years of research directed to the need for patenting algorithms.”

    1.5 years of your life wasted :( I feel sorry for you man. Hope you at least got paid, because that sure as f isn’t rewarding work in other aspects now is it? There is nothing you could possibly learn from such research as there is no such need :(

  109. >>This is why I believe the MOT will not decide >>this case and why Stern’s approach will prove >>decisive.

    I do hope you are kidding. Figure out utility based on utility as it was understood in the 1700′s?

    Max, they are waiting for an audience with the Queen before writing the opinion.

  110. INANE, you miss the point (not surprisingly).

    Both of those statements, taken together, and extended to their logical absurdity, eventually lead to a totalitarian state with infinitely expanded jurisdiction, and infinitessimally narrow rights.

    Kind of like what we have been seeing in Amerika – where liberty used, to live.

  111. The advocacy of the good solicitor general leaves something to be desired. At one point during oral argument one of the Supremes commented that he followed the reasoning of the government that Bilski did not satisfy the MOT, but suddenly lost it when the government said the Bilski claim would satisfy the MOT test if the claim was directed to a programmed machine or an article of manufacture.

    This is why I believe the MOT will not decide this case and why Stern’s approach will prove decisive.

    As to when, Stern told me, June.

  112. IANAE,

    Some people operate under the mistaken impression that “doing what’s right” is a fundamental precept in law, rather than “gimmie gimmie gimmie – more power, more power, more power“.

    The naiveté is charming.

    Sort of like thinking that the checks and balances tri-part structure looks nice.

  113. Both of these statements are troubling.

    Why?

    Your constitutional rights are supposed to be a limit on government legislative power. Pretty much all of those rights are adverse to some kind of law you’d otherwise expect the government to want to enact for one reason or another. The government isn’t supposed to want to respect your rights, it’s supposed to have no choice because it’s in the rules (the constitution) that those rights override any inconsistent law.

    It’s the judges who are supposed to care about your constitutional rights, and enforce them against the legislative and executive branches. Branches of government, checks and balances, and so forth. Was this not covered in school?

  114. “Patent Amicus Briefs: What the Courts’ Friends Can Teach Us About the Patent System”

    That sounds so touchy-feely, I think I’m going to hurl. Just as soon as I get done singing Kum-bah-yah.

  115. ” the government as amicus has an interest in defending broad application of statutes to extend its jurisdiction. ”

    “In constitutional matters, the government would generally advocate for broad powers and narrow rights for the same reason. ”

    Both of these statements are troubling. To me that is self-evident; if I need to explain why, let me know.

  116. Predicting the outcome is not the point of primary interest for most practitioners. It is already clear that SCROTUS has become a group of political hacks that do whatever it takes to arrive at some outcome that has been deemed desirable. What is of great importance to the day-to-day practitioners and patent stakeholder, e.g. the people who REALLY matter in all of this, is what SCROTUS will say about what subject matter is eligible.

    My prediction is that they will, as usual, give us useless gobbledygook.

  117. The wait for the Bilski decision from SCOTUS reminds me of the “padding” at the end of the message Nimitz sent Halsey about where his 3rd Fleet was in the Battle of Leyte Gulf while Kinkaid and Taffy 3 of the 7th Fleet tried to stave off annihilation by Kurita’s battleships in the Center Force: “THE [PATENT] WORLD WONDERS.”

  118. If the rate is 50:50 for bankruptcy cases, criminal cases, and 1st amendment cases, then we might be looking at a judicial technophobia that the USSCt hides simply by re-packaging whatever the SG says.

    I don’t think that would necessarily be the implication. In pretty much any other area of law that is routinely before the Supreme Court, the government as amicus has an interest in defending broad application of statutes to extend its jurisdiction. In constitutional matters, the government would generally advocate for broad powers and narrow rights for the same reason. Also, whenever the Supremes decide a case on constitutional grounds, the government is nearly powerless to overcome that decision with legislation. When you take a side, you’re flipping a coin like all the other amici in patent cases who are not outcome-predictive.

    In patents, the government probably doesn’t really care whether a particular set of claims or class of technology is eligible for patent or issues to patent. The government doesn’t exert any real degree of control over issued patents, nor does it turn a significant profit from them. Even if it turns out that computers are not statutory subject matter, the question is just that – statutory. The government will defend the status quo and reserve the ability to legislate later as policy dictates.

  119. I disagree with the professor. Of course I base my opinion on a mere 20 years of experience in the field and nearly 1.5 years of research directed to the need for patenting algorithms. But hey, I could be wrong.

  120. There are some very interesting issues circling around the periphery of some of these comments. Bilski, per se, is not one of them.

    The first issue is whether the 19/20 rate of buying the government’s case is any different in patent cases than any other subject over the same period. If the rate is 50:50 for bankruptcy cases, criminal cases, and 1st amendment cases, then we might be looking at a judicial technophobia that the USSCt hides simply by re-packaging whatever the SG says. There are many of us who, after cases like Flook, seriously doubt that the Court has any technical abilities.

    The other unknown is whether the last 20 years are representative. This may be important because if it’s not, there may be a strong influence of conservative justices — maybe the conservatives are more freaked out by technology. Is there a lower rate of granting cert to patent cases during this period? This might also indicate a technophobia.

    Face it, for folks with 0 math, 0 programming, 0 science and 0 technical experience, technology has gotten pretty scary in the last 20 years. Bankruptcy is about the same — still scary, but no more so.

  121. Kagan’s brief basically says the MOT test should be upheld. Who really thinks they are going to author an opinion to uphold it? Wouldn’t they just dismiss cert as improvidently granted? Is that what Chien is saying we should expect?

  122. “Hopefully she’ll author the opinion which overturns Citizens United, which is easily one of the worst Supreme Court decisions …”

    Hmmm… maybe if the government in the person of your hero SG Kagan hadn’t said she thought she could ban book dissemination via the same statutes…

  123. Of course the SG argued against cert and against the patentability of the claim. The U.S. is basically one of the parties here. The SG’s personal views on the subject don’t really get to be expressed, do they? So why should we think those briefs reflect the personal views of the SG?

  124. When it becomes agreement in 19 out of 20 cases, one begins to wonder if the Supremes think for themselves.

    If you write a math test and get 19/20 of the same answers as someone else, is it because neither of you can think for yourself? Or is it because there isn’t a whole lot of wiggle room in the right answer, and the right answer isn’t suspicious just because someone else also arrived at it?

    These are government amicus briefs. They’re essentially a statement of what the government thinks the law is, and it turns out they usually get the right answer. They probably also produce the only amicus brief in most cases that doesn’t take a side to defend the author’s interest. If the Supremes sided with the government 95% of the time when the government was a party, then you’d have good reason to complain.

  125. BJA said “just because they agree doesn’t mean there’s a problem with separation of powers.”

    When it becomes agreement in 19 out of 20 cases, one begins to wonder if the Supremes think for themselves. Then again, you read KSR and you wonder if they think at all.

  126. Malcolm, well you will agree that the Citizen’s United case saw a fundamental change in Supreme Court case law. They overruled prior constitutional cases. Now that is very unusual.

    You can see in reading the majority opinion that they were struggling to avoid the “big” issue and decided the case on narrow statutory grounds. But the good solicitor general gave them no choice. This is where her brief was the weakest. She gave them no reading of the statute that was acceptable, saying at one point that a “suggested” interpretation was not sufficient. They wondered at the government position here, saying that they had never seen such a position before where an interpretation was “suggested” but not clearly endorsed as right.

    There is no doubt in my mind that the reason the government lost the case had a lot to do with the poor advocacy of the good solicitor general.

  127. MaxDrei, dittos on Stern. The more I think on it, the more I think that they will 1) affirm the MOT test, but agree as they did in Benson that it is not exclusive; and 2) but in this case hold that the real problem with Bilski’s claims is the “kind” of utility. Business methods do not fall within “useful Arts.”

  128. Because, otherwise, the cutting edge research will be taking place in other countries,

    Why would patent law dictate where research is conducted? People who spend big bucks on research usually want patents all over the world, and by and large their patent protection in a particular country has nothing to do with whether they invented the technology in that country.

    Research will go where it is cheapest to do the research.

  129. On this blog one learns something new every day. I am so naive. I had no idea that the way the USA became great was:

    “….refuse to grant foreign filing licenses and issue secrecy orders on the really good inventions, the same way we used to do it.”

    Not sure I believe it though. Is it a joke? Are you being serious, TINLA IANYL? Are you sure that would still work, in today’s globalised world. I thought that nothing makes all those foreign demons more happy than when US industry neglects to file foreign.

  130. especially when the “particular machine” requirement includes pretty much any computer that will ever be built.

    Fixed that for ya pal.

    The thought crosses my mind, mischievously, that the Justices want to digest G3/08

    Maxie,

    The Justices have no interest in the legal thoughts on your side of the pond. None.

  131. “I think they’ll carve out some room for computer implementations that relate to making computers work better, and possibly for useful applications of math such as cryptography that in a practical sense are only ever done on computers and without physical structure.”

    You think they’ll go with the EPO’s “technical effect” then…

  132. The thought crosses my mind, mischievously, that the Justices want to digest G3/08 (you can download it from the EPO website since last week) before they issue their opinions.

    Suppose the outside cylindrical surface of a coffee mug, old in all respects but one, namely that it is engraved with a new (and decidedly non-obvious) poem (or aphorism) is what is claimed, as object or as method. Does either claim pass through the 101 filter and does it then pass through the 103 filter. I imagine SCOTUS will want this case to be useful guidance to the USPTO in such circumstances.

    My money’s on Stern.

  133. In trying to ascertain what Congress intended when authoring the Patent Act, I think it would be best not to get too close to the trees, and focus instead on whatever rule will get people performing R&D in the U.S. again. I’m sure that if we could ask the 1952 Congress what they meant, they would say that’s what they meant.
    Because, otherwise, the cutting edge research will be taking place in other countries, who will then refuse to grant foreign filing licenses and issue secrecy orders on the really good inventions, the same way we used to do it. You know, back when the U.S. was the place to be.

    Now, the problem is figuring out a rule that will accomplish that end. Good luck with that.

  134. The Bilski claims just don’t pass the machine or transformation test

    Clearly. The Bilski claims don’t even pass the laugh test.

    I will be very surprised if the Supremes uphold “machine or transformation”. Processes are separately patentable subject matter, and it doesn’t make sense to tie them to machines or compositions of matter, especially when the “particular machine” requirement excludes pretty much any computer that will ever be built.

    I think they’ll carve out some room for computer implementations that relate to making computers work better, and possibly for useful applications of math such as cryptography that in a practical sense are only ever done on computers and without physical structure.

    Bilski’s claims aren’t really close enough to the 101 boundary to make the boundary clear. It’s like trying to map America’s coastline from Iowa – you know it’s there somewhere, but you don’t have a very good view of it, and it’s easy to get the details wrong, and it’s potentially a big problem for the first guy who uses your map.

  135. I believe very strongly in “software” and computer implemented inventions being patentable, but even I think Bilski’s claim language was bad enough to knock it out via 101.

    I am more interested in how they treat the specific machine and transformation aspects of the rule.

  136. American Cowboy, you have a point, but if the govn’t gets it right (which is rare indeed) then they get it right, and there’s no reason not to rubber stamp their brief/opinion. Just because they agree doesn’t mean there’s a problem with separation of powers.

  137. IANAE, for once we’re in agreement. It’s like McKesson and the other case on the front of this blog. It’s not that they decided that they wanted to whack an individual…. it’s that they got diarrhea of the pen and couldn’t just stop with “we can’t stand this guy and his patent is therefore invalid.” They had to go on and talk about how much they loathed him and say each and every act he’s ever taken, whether related to his patent or not, constitutes inequitable conduct by itself.

    The Bilski claims just don’t pass the machine or transformation test in my OPINION. So the question isn’t whether to uphold Bilski’s claims, but how much damage a bunch of people with only a passing understanding of patents and business are going to do to the industry and economy.

  138. “in the last 20 years, every single amicus brief authored by the US Government in a Supreme Court patent case except one predicted the case outcome.” Chien writes “If history is any indication, the Supreme Court will almost certainly follow the US Government’s lead”

    For the Supremes to merely rubber stamp what the Solicitor General says undercuts the vaunted judicial independence and separation of powers.

  139. This article seems a bit light. I found the amicus briefs interesting in that some of them gave many facts about the importance of information processing patents. See Nevada’s for example. I saw no brief that offered any evidence of “the great damage” being done by business method patents. Stern’s utitlity argument (which is very similar to the right of jury method) is so anti-innovation that I can’t imagine any justice adopting it.

    If Stevens writes the opinion, then it is likely going to be bad. But, his thinking is so muddled that the opinion will likely have so many holes that the fed. cir. can do whatever they want to do.

  140. This prediction does not seem to be certain, in light of the justices’ comments at oral argument.

    At least four justices seem to favor an outcome that would provide at least some patent rights (Alito, Roberts, Scalia, and Sotomayer).

    Here’s hoping for a fifth vote from somewhere!

  141. It really doesn’t matter what happens to Bilski’s claims. What matters is what the rule ends up being for the rest of us.

    I don’t think the Supremes would have an easy time crafting a coherent rule that would save Bilski’s claims, even if they wanted to.

  142. I didn’t see that prediction in the article, though I might just have missed it. More importantly, while I agree with the bottom line (Bilski is dead meat), I don’t think the prediction is justified by the empirical study being discussed. There is a large difference between the government as an amicus and the government as a party. The government could well be so influential as an amicus because it is perceived as a neutral expert. That neutrality is of course compromised when the government is a party.

  143. Well the good solicitor general’s arguments supporting the ban on political speech by corporations was not followed by the Supremes. Perhaps her arguments were weak, illogical and unsupported for a reason: she intended to lose.

    Hopefully she’ll author the opinion which overturns Citizens United, which is easily one of the worst Supreme Court decisions since Bush v. Gore.

  144. anonymous, but, if Kagan’s track record holds, she will lose because she is representing the government as a party, not as an amicus. This is an appeal from the USPTO to the Federal Circuit.

    Also, it appears Stevens will be writing the majority opinion. Wouldn’t it be odd if she is reversed once again by the Justice she will replace (assuming confirmation, of course.)

  145. Ned Heller, I doubt that Elena Kagan intended to lose Citizens United.

    But that aside, the government is in a different position when it’s a party instead of an amicus. In a case like Citizens United, the government is charged with defending the constitutionality of a law or (usually but not always) with defending the decision below.

    In cases like Bilski, where the government isn’t a party and the constitutionality of a law isn’t under attack, as an *amicus* the government can offer–as you put it well–”a good summary of the law and can be relied upon as generally being neutral between contending interest groups.”

  146. Yeah, well the government had gotten somewhat silly over the past six to seven years. Their machine-transformation test is too strict. But I do agree that Bilski’s claims will likely be found unpatentable.

    Thanks professor. I was experiencing SC anticipation panic earlier today and needed a fix.

  147. “Professor Chien reminded me that as Solicitor General, Elena Kagan authored both the US government’s merits brief in Bilski case arguing that Bilski’s claim is unpatentable and the US government’s amicus brief opposing cert. ”

    THAT, sir, is information. I’ve seen the future of your USSC, and it is anti-biz method.

  148. “It is (1) my opinion (2,3) that (see Table 1) SCOTUS will find (see Figure 2; ref. 3) Bilski’s claims (4) unpatentable (cf. Fig. 3; ref 3).”

    That’s information?

  149. I’d be more interested in an educated prediction as to WHEN the opinion will finally come out.

  150. Is there anyone out there who really and truly believes that Bilski is going to win this one? Also, is there any point in predicting how SCOTUS will rule when in just a few weeks we shall all find out?

  151. In recent years, amicus brief advocacy has arguably been much more effective and cost- effective than lobbying Congress. While the industries most interested in patent reform spend millions of dollars per year on political donations, preparing an amicus brief typically costs no more than $10,000 -$20,000.

    This argument is very questionable. The political donations are not all about patent issues. In the case of pharma, for example, I’m sure donations have much more to do with FDA regulation, health care reform, etc than the patent system. The author is comparing apples and oranges.

    On balance, however, it’s a good paper. If the primary point of the paper is to believed, however, then I would question the Court’s wisdom in taking too many cues from the Solicitor’s Office. Patent policy should be based on the purposes of the statute as enacted, not as determined by whoever happens to be occupying the White House when a case comes up to the Supreme Court.

  152. Well the good solicitor general’s arguments supporting the ban on political speech by corporations was not followed by the Supremes. Perhaps her arguments were weak, illogical and unsupported for a reason: she intended to lose.

    But, generally, the governments briefs are conservative, provide a good summary of the law and can be relied upon as generally being neutral between contending interest groups.

    So, I would agree that the Bilski claims are doomed.

    But I would still like to call attention to Stern’s brief. It is the most interesting of all briefs filed, IMO. Stern was the original author of the MOT in Benson in the government brief filed there. His views there expressed are now the presumptive test of the Fed. Cir., and the position that the government once again supports in Bilski. But his current brief argues that the real problem in Bilski is its “utility.” He argues that business methods were not the kind of utility the framers had in mind when they used the term “useful Arts” in the Constitution.

  153. With all due respect, no one needs an overly verbose law review article to tell me that the Supreme Court will find the Bilski claim not patentable.

    A more helpful analysis would have been to what extent the SCt follows the govt brief in close cases.

  154. Bilski’s claim will be upheld as unpatentable, not because the SG says it should be, but because the overwhelming majority of precedent says it should. The SG tends to take a nondisruptive approach to precedent, as does the SC, so it makes sense the two coincide so often. On the other hand, amicus that seek to serve a particular interest group are more likely to offer an approach that may be too disruptive of precedent, which the SG and SC tend to steer clear of.

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