Ego, Law, and Justice Alito’s Opinion

On the main page, they’re talking about how Justice Alito wrongly criticized the Federal Circuit for “fundamentally” misunderstanding what infringement requires, but in doing so ignored the Federal Circuit’s own opinion, on review, on that subject in Limelight.

I’ve written a lot about how, in my humble view, the Supreme Court doesn’t understand patent law.  I observed this first hand in watching oral argument in Gunn v. Minton.  I experienced it first-hand as a clerk in assisting the court during the CLS Bank appeal, when the Federal Circuit clearly struggled with following the statute, following the cases, and giving a comprehensible framework for the patent community.  I’ve seen it in reading Justice Scalia’s joinder in Myriad, where he basically said that he had no idea what the science was, and in seeing that, in fact, the Court completely botched that case.  I’ve seen it in the silliness that was Biosig.  Where are we now?

What we need is judicial restraint by the Supreme Court.  They do not understand the technology, the law, or implications of what they do, and this is particularly true in 101 jurisprudence, where they simply can’t seem to read the statute or harmonize their own cases (no one can).

Rant over.


29 thoughts on “Ego, Law, and Justice Alito’s Opinion

  1. Well said, David. Unfortunately I don’t see any quick fixes here – you’ve got nine bloated egos, and the results of their meddling are going to be largely unobservable: you see the drugs that are developed because patents ease investors’ minds, you won’t see the drugs that won’t be developed in the future as a result of Myriad and Mayo scaring investors away from biotech. Try selling Congress on a non-observable. Perhaps, several years hence, when there’s contraction in the biotech industry, you might be able to sell Congress on the loss of jobs, but it will be hard to get a legislative fix by pointing to the drugs that weren’t developed. And even if Congress acts in a rational manner – a long-shot at best – what’s to keep the bozos on the supreme court from screwing things up again?

    1. Agreed. Prof. Turley thinks we need 19 justices (you should read why — I’m sure it’s out there), and I think he’s right. 9 was a bad accident of history.

    2. Try this as a quick fix:

      Limit Supreme Court jurisdiction to hear appeals from the federal circuit to splits in the court (at least 4 judges in the minority), or when the federal circuit finds itself in a split among the circuits.

      1. That’s interesting. Prof. Turley convinced me that the problems we have as patent folks also infect other areas. He was describing how other lawyers complain that they can’t implement the Court’s decisions — and other complaints exactly like I hear from patent lawyers.

        My own view is that this Harvard, non-practicing no-real world experience model of supreme court justice is in significant part the source of many problems!

      2. I like my (earlier) suggestion better.

        Under the authority of the constitution for Congress to set up and control inferior courts, have Congress mandate that any specialty court they set up has the last word on the law EXCEPT any issue that rightfully impacts a constitutional issue – and ONLY such an issue can be brought above the specialty court and be heard before the Supreme Court.

        If one goes back and really looks at the Marbury case, the power of judicial review is a branch of government concern – and not a level within the judiciary concern.

        Once cannot keep the Supreme Court from final judgement on constitutional issues, but NOWHERE does it say that non-constitutional issues can be sequestered from the Royal Nine. If Congress sets up the lower court correctly, Marbury can still be met and the finger in the nose of wax addiction of the Royal Nine can be defeated.

        Think about it…

      3. Ned, you would also seem to restrict review to non-group-think problems.

        As clearly shown in the rash of unanimous Supreme Court decisions, even 9-0 decisions can be utter dross, and setting up review of only those that have splits will only enforce a group-think mode which is many ways can be more dangerous to the rule of law.

  2. Thank you. Thank you. Thank you.

    I wish there was a way to sticky this blog entry onto the front page of this website and keep it there for the foreseeable future.

    I have no idea why SCOUTS is hell-bent on meddling with patent law, but it’s abundantly clear that they are utterly incapable of understanding the issues at hand. With such a large portion of the US economy linked to patent rights it is a mystery why the court has such a undying fixation with trying and weaken these rights at every opportunity.

    The only thing more disgusting is what is happening with 101 jurisprudence at the district court level…presumption of validity has become irrelevant if the technology at issue is computer related.

    1. What has only recently come into focus to me is how we’re repeating ourselves. The Court had messed up patent law, and so in 1952 Congress fixed it. Then it messed it up again, so in 1982, Congress put the CAFC in place.

      And in 2012… Looks like it takes the Court 30 years to #*&#* all up.

      1. lol- reminds me of the adage:

        Those who do not learn history are bound to repeat it.

        Wherefore art though, Mr. Churchill?

      2. I agree. The only problem we have now, as opposed to in 1952 and 1982 is that Congress is even more poorly suited to make changes that are positive, mainly because it appears that the entire political process is sliding towards idiocracy.

        I have been practicing for nearly ten years now. What concerns me the most is the constant moving of goalposts. I wouldn’t mind the changes if they were being carefully considered and implemented in an iterative manner.

        1. I can relate. I do malpractice work, and see people sometimes say “you shouldn’t have drafted the claim this way.” To evaluate that, you have to go back in time…

      3. David, I think another of our Patently-O professors observed that the court was deciding, most of the time, deep splits among the Federal Circuit, just like it decides splits among the circuits.

        Do you think this is a proper role for the Supreme Court, but otherwise they should butt out?

      4. David I agree with this. It seems to me that in their complete ignorance of science and technology that the SCOTUS renders every invention as being obvious. Weird, but I think it is hindsight reasoning that is just very hard for people to understand without actually experiencing it first hand.

        Stevens must take the cake for this by saying that any software is made by simply specifying what it should be and then taking it to a boy to program.

        But, it also runs deeper in that many of the justices fundamentally misunderstand information processing.

        I think the solution is to remove jurisdiction over patent law from the SCOTUS, which is Constitutional, by the way.

  3. OK – room for rant given…

    …now what?

    What exactly can or should we do – as a legal community to effectively change what appears to be an out of control situation?

    Surely, the Supreme Court cares for its legacy, for the appearance of judicial respect (at its level and throughout the judicial system) and clearly, the amount of “winging it” and lack of accountability must stop.

    But how? Exactly whom will the Justices listen to?

    1. Scalia was embarrassed a month or so ago with something. I hope Alito (and those who joined) see that they wrote an unfair and demonstrably inaccurate criticism of the court Congress charged with fixing the mess that the Supreme Court had allowed to happen before 1982.

      Seriously, this is just nutzo.

      1. Perhaps the p1ssing match needs to be elevated and confronted directly.

        Let’s stop pretending that this is a battle only in the judiciary.

        It is not.

        The CAFC is but a proxy for Congress. The real battle is between two branches of the government: the judiciary and the legislature.

        This is all about writing maps and nothing at all about reading maps.

        I certainly hope that Congress is aware of this. Perhaps the letter from Mr. Hatch to Mr. Obama was a trial run for calling out a different branch of the government for not behaving correctly.

        In any event, and no matter how off Justice Alito was in the instant case (and how off the rest of the Justices were in agreeing with him – oh wait, every Justice agreed), the real sh1tst0rm will hit with the Alice decision.

        The battle over who exactly has the power to write patent law (implicitly as well as explicitly) started in 1952 when Congress revoked the common law evolution tool from the courts on determining the meaning of ‘invention.” As I have shown in the historical records of newly created 103, Congress (not the judiciary) reserved the right to later come back and add more definitional heft. We have had a rogue judiciary for far too long now.

        I would love nothing more than some direct and plain words from Congress: “We wrote 101 to be a wide open gate and we meant it.”

      2. “this is just nutzo.” 100 percent agree. Just ridiculous.

        But, my prediction is the end of patents for anything but pharma. Obama has put ignorant anti-patent judges on the Fed. Cir. and appointed an anti-patent shadow director and an anti-patent chief judge at the PTO. My guess is that we are going to have to have a big fail with no more patents and then the eventual loss of innovation and jobs. In fifteen years, we may rebuild patents, but now I think the writing is on the wall. The patent system is doomed.

        Expect within 5 years a company like Google saying we aren’t going to file anymore patents and anyone that tries to assert a patent against us will pay. They will build a $5 billion war chest and take them out. It is just outrageous that judges like Lourie feel like they can just knock out 100’s of thousands of patents ’cause they know they are no good. And yet, a person like Lourie clearly does not understand the technology.

        Oh well… long as the nexus between patents and innovation takes more than 2 minutes to explain, we can expect patents to continue to be weakened. I predict the worst.

        1. Although, I expect that Alice will not be a big win for the anti-patent crowd. I think the SCOTUS will recognize that Lourie’s method would effectively make any patent invalid based on judge arguments. That is not the application of the law.

          1. Night, the absurd thing about Lourie’s opinion was that he was trying to apply Bilski the way it was written, which itself was absurd.

            1. NWPA I have some of the same fears you have. A part of me has wondered for a long time if some aspects of patents aren’t a tulip craze (google it), but it is clear to me that, whatever negative impact, since 1982-ish technology has gone through the roof. Products exist today that were imaginary 10 years ago, or even 5. I’m typing on a computer, on an airplane, putting it up for millions (well, ten or twelve) people to read, and all in an instant.

              Praise patents!

            2. since 1982-ish technology has gone through the roof.

              Many though (including several anti-patent regulars on the main blog pages) would clench tight their eyes to this phenomenon.

              Google the main pages and see how often the invitation is made to such posters to abstain from the fruits of innovation that they would seek to deny patent coverage to.

              They react with derision and scoffing, but they would refuse in a heartbeat to put their money where their mouths are.

              Taking such a pure and candid look at whether one’s actions comport with one’s professed philosophies is an acid test that not one of the regular posters of the anti-patent ilk would pass.

              Not one.

              (it is also thus no surprise that the most intellectually dishonest arguments come from the same set of people). Is it too much to ask that you live by what you would preach?

            3. Perhaps we can track down Prof. Masur and ask him a question in line with his theory that patent expansion has been running rampant.

              The question to put to him: How do we get MORE of this patent expansion, seeing as the pace of innovation seems to go lockstep (in a very positive manner) with this supposed patent expansion?

              I wonder if he would enjoy the irony of the situation.

            4. The question to put to him: How do we get MORE of this patent expansion, seeing as the pace of innovation seems to go lockstep (in a very positive manner) with this supposed patent expansion?

              Amen, brother! While we’re at it, we should ask him how to get MORE global warming, since the pace of innovation also seems to go lockstep (in a very positive manner) with this supposed global warming trend!

              Furthermore, I’ve noticed that obesity has gone through the roof since about 1982-ish, i.e., over precisely the same time period during which David has observed a technology explosion. Praise obesity!

            5. way to go into the weeds DanH.

              If you do not think there is a high correlation (if not a direct cause and effect) between patents and innovation. WHY THE H DO WE EVEN HAVE A PATENT SYSTEM?

              /off rant

            6. If you do not think there is a high correlation (if not a direct cause and effect) between patents and innovation. WHY THE H DO WE EVEN HAVE A PATENT SYSTEM?

              Oh, you were serious? After your speech about intellectually dishonest arguments, I assumed that you were being sarcastic. My mistake.

              Anyway, it’s perfectly reasonable to think that there is a relationship between patents and innovation. I do. Without evidence, however, it is NOT reasonable to assume that the level of innovation is a monotonically increasing function of the number of granted patents.

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