A random thought about CLS Bank’s Oral Argument

The transcript is here.

To the supreme court:  sometimes in life, if you think other people are stupid, maybe you’re not as smart as you think you are, or maybe you’re not explaining yourself very well.

That is all.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

33 thoughts on “A random thought about CLS Bank’s Oral Argument

  1. 4

    “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.” -Judge Scalia in Myriad

    Scalia, being the acknowledged smartest, feels secure enough in his intelligence to just say that he doesn’t know. Likewise his split joining in Bilski. If he did his job and came to a conclusion, maybe the Supremes could issue a majority opinion unlike in Bilski. I’m sure if Scalia wrote it some of the less power drunk judges on the CAFC would pay attention for a while until they decide to overrule it.

    1. 4.1

      Owen, “… until they decide to overrule it.”

      Is it possible for the Supreme Court to remove judges for refusing to follow their opinions? I know they can keep overruling them, but how far can simple intransigence and passive aggressive behavior be tolerated?

  2. 3

    Questions were asked of both Perry (pages 29-30, 32, 33-34, 35, 39, 40, 42) and Verrilli (pages 50, 51, 53) essentially as to where the line should be drawn — what is patentable versus what isn’t. Neither had a concrete answer.

    1. 3.1

      Will the Court attempt to do the very thing that they say patentees cannot do?

      To wit: “We said ‘abstract,’ now just apply it.

    2. 3.2

      Mr. no, I think the solicitor general did respond with a concrete proposal when he gave a definition of abstract idea.

      1. 3.2.1

        I think the solicitor general did respond with a concrete proposal when he gave a definition of abstract idea.

        Page 50
        Kennedy asks Verrilli, “Is there an example that you can give us of a — what we can call a business process that is patentable, a process that doesn’t involve improving the workings of a computer?”
        Verrilli responds by “I think it’s going to be difficult for me to do that.”

        On page 50, Roberts states: “in your brief, you’ve got a non-exhaustive of factors to consider, and there are 6 different ones. And I’m just doubtful that that’s going to bring about greater clarity and certainty” (emphasis added).


          Mr. no, you did read where he did answer that question in a very short and very pithy statement did you not?


            Verrilli was worse than useless Ned.

            He got he existing law wrong, thus failed to bridge any gap in providing a reason to change the existing law.


              anon, why do you always talk in abstractions so that no one can understand your point?


            you did read where he did answer that question in a very short and very pithy statement did you not?

            You mean this?
            they are all directed to answering the question of whether the innovation that is claimed and is an innovation in either, A, the improvement of a computer’s functioning or, B, the use of computer technology to
            improve the functioning of another technological process

            So … computers cannot be used to improve another technology? Does the same hold for screwdrivers? Lights? Motors? Switches?

            Why is it that computers cannot be used to improve the functioning of another technological process and still be patent eligible?


              Hidden in B is merely the question of utility.

              Verrilli was dead wrong on that question. He acted as if current law constrains the Useful Arts to the technical arts. It is well understood that such is simply not so.

  3. 2

    All I know Ned is that when I find my students don’t understand me, often I’m the problem, not them…

      1. 2.1.1

        The problem you are having Ned is your difficulty in re-writing the Bilski opinion to fit your agenda.

        Every time you do so, you end up only with the Stevens dissent-dressed-as-concurrence and the math fails you – as said more than once in the oral arguments today, 4 is not 5.


          As I have posted elsewhere, 4 is no longer even 4.

          Stevens is gone.
          Sotomayor will flip.

          This portends that even Kagan and longshot Kennedy will not be enough to explicitly rewrite the words of Congress.


            That was a surprise. Sotomayer and Kagan had hints of being pro-patent. Gingburg is just a very ignorant old woman.


              Sadly, an appeal to Ginsburg as to how the Court rewriting explicit words of Congress could impinge on her other interests was not made.

  4. 1

    I when asked why the Federal Circuit was all over the map, do you think that Perry would have blamed their opinion in Bilski as not being clear?

    I think someone should — well Stevens in fact did in his concurring opinion, did he not? Kennedy provided no explanation as to why the business method claims were abstract.

    Note, Flook had clarified that math was like a law of nature, a truth, and for that reason, old. Benson and Flook thus were not about “abstract” as much as about “laws of nature and scientific truths.” With this much, I agree with Alice.

    It is not clear why the Benson claims were excluded. Clearly they were not within the useful Arts, but that is not what Kennedy said.

    1. 1.1

      Then we get to the SG’s definition of abstract. Good definition. But really just another way of saying “useful Arts.”

      I think Scalia needs to abandon the Abstract Kennedy and get on board with the useful Arts Breyer. Perhaps, ask Scalia to write the opinion.

      As well, Thomas, Roberts, Alito and Kennedy cannot be so ….. as to insist that they can permanently get away with no explanation as to why business methods are excluded.

      1. 1.1.1

        no explanation as to why business methods are excluded

        (sigh) – because they are not Ned.

      2. 1.1.2

        Did you not read this from Bilski?
        The Court is unaware of any argument that the “ordinary, contemporary, common meaning,” Diehr, supra, at 182, of “method” excludes business methods. Nor is it clear what a business method exception would sweep in and whether it would exclude technologies for conducting a business more efficiently. The categorical exclusion argument is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents: Under §273(b)(1), if a patent-holder claims infringement based on “a method in [a] patent,” the alleged infringer can assert a defense of prior use. By allowing this defense, the statute itself acknowledges that there may be business method patents. Section 273 thus clarifies the understanding that a business method is simply one kind of “method” that is, at least in some circumstances, eligible for patent- ing under §101. A contrary conclusion would violate the canon against interpreting any statutory provision in a manner that would render another provision superfluous. See Corley v. United States, 556 U. S. ___, ___. Finally, while §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions. Pp. 10–11.


          Mr. no, I you trying to deny that patentable subject matter is limited by the Constitution to subject matter within the useful arts? Are you trying to suggest that when Congress passed the first two patent statutes in 1790 and 1793, that they did not have this constitutional limitation in mind when they limited patentable subject matter to new and useful arts, machines, manufactures and compositions? Art the words after useful in the statutory definitions to be construed properly as being what Congress considered useful arts to be?



            Like your wayward attempts to redefine business methods, your attempts to redefine Useful Arts as technical arts is outright rejected.

            Try being honest Ned.


            What is your point? I am far less interested in what Congress may or may not intended in 1790 and 1793 than what SCOTUS stated in Bilski.

            Based upon some basic principles of statutory construction, it seems clear that Congress recognized that business methods are within the scope of patentable subject matter. If they were not, then Congress could have easily stated so. As such, there is certainly a basis to say that business methods are not categorically excluded from 35 USC 101. You may not agree with it, but you cannot say there is no basis for that position.


              Oh no,

              You may have already guessed that Ned simply says what he wants to say regardless of reality.


              Mr. No, Bilski did not categorically exclude business methods. But that does not mean they are processes within the useful Arts. The majority did not go there, however. They neither approved or disapproved them as being within the useful Arts. Besides, there is a real question as to whether congress has the power to authorize patents not within the useful Arts. This is not purely an intent of congress statutory construction issue.

              But Abstract? Now where did that come from? Not from Benson, and not fromr Flook. They both held that mathematics were akin to law of nature, the basic tools of man, etc. Laws of nature and scientific principles are preexisting though unknown. They are not “new” within the statute. Flook, note 15.

              Business methods are not laws of nature. They are not the fundamental resources of all mankind. They are not received truths. But they are also not clearly within the useful Arts.

              Useful Arts is and was the only problem with the Bilski claims. Labeling them Abstract is a cute way of avoiding siding with Stevens while avoiding the hard questions.

              The court really now should explain itself in simple, understandable English. Trying reading Learned Hand, Court.



              But that does not mean they are processes within the useful Arts … there is a real question as to whether congress has the power to authorize patents not within the useful Arts
              They seem “useful” to me. Your tautology aside, you are free to argue what useful arts meant 200+ years ago, but that argument doesn’t seem to have a lot of legs.



              You keep on trying to write something different than what the Court wrote.

              Where do you get such reckless disregard?

              Why do you want to play king?

              Who is your tailor?


              Mr. no, the definition of useful arts is actually in the statute today. Guess where?

    2. 1.2

      Stevens was dead wrong in his dissent dressed as an concurrence in Bilski Ned.

      Please don’t insult anyone by pretending otherwise.

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