US Supreme Court Skeptical of Business Method Patents 160
Trepidity writes "The US Supreme Court held oral argument Monday in Bilski, a business-methods patent case that might also have important implications for software patents (We have previously discussed the case several times). The tone of the argument appears to be good news, as the justices were very skeptical of the broad patentability claims. They even brought up a parade of absurd hypothetical patents quite similar to the ones Slashdotters tend to mention in these kinds of debates. Roberts surmised that 'buy low, sell high' might be a patentable business method, Sotomayor wondered if speed-dating could be patentable, Breyer questioned whether a professor could patent a lesson plan that kept his students from falling asleep, and Scalia brought up the old-time radio soap opera Lorenzo Jones, featuring a hare-brained inventor with delusions of getting rich." Patently O has good blow-by-blow coverage of the day's proceedings. Official argument transcripts will be up soon, they say.
good background info (Score:4, Informative)
You can't always tell (Score:1, Informative)
The judges will ask questions and it may seem that they are favoring one side or the other. That isn't always the case. The judge's question may give a lawyer a chance to cover up a hole in his case that the judge saw but the lawyer missed.
Re:"You thought we would mess it up?" (Score:2, Informative)
It is? Hmmm. I can not lay my hand on any part of the People's Constitution that grants the United States the power to uphold business interests rather than obey the law. On the contrary the Supreme Law says that power, if it exists, belongs to the State Legislatures.
Re:I wouldn't count on it... (Score:4, Informative)
You are correct, and most courts act this way on difficult questions. The judges read the briefs and the trial transcripts (or have their clerks read them, really), figure out what they think the answer should be, then go into oral argument usually looking to solidify the position they've decided upon. Often this takes the form of, as you said, hammering on the side they favor to flesh out whatever theory they're currently working out in their heads. You'd be surprised, a lot of answers that seem "bad" have a nugget of a good legal theory, or at least something that brings parts of the theory together.
Of course, harassing attorneys with questions you know they can't answer sufficiently or forcing them to admit to something that makes them uncomfortable is also fun.
Re:"You thought we would mess it up?" (Score:5, Informative)
If Congress wants to regulate patents in a way that helps big business, then they can.
Re:"You thought we would mess it up?" (Score:4, Informative)
2. Why is it the job of the govt. deputy solicitor to uphold the political interests of the US of A rather than the legality of the issue at hand? (there is an opinion here that software patents help the USA in World Trade.... which seems very dubious to me at any rate).
The solicitor general's job is to argue the political interests of the USA before the Supreme Court and and be an advocate for a particular position that the court has to rule on. Though the Solicitor General can practice "confession of judgement" (which means to drop a case if he considers the government's official position to be unjust) it's much more normal for the Solicitor General to play devil's advocate and argue the position and let the court create precedent.
Re:"You thought we would mess it up?" (Score:5, Informative)
"Alan Gura, the Alexandria, Va., lawyer who masterminded the challenge to the D.C. handgun ban, says the NRA has joined him "ever so grudgingly" only in recent weeks, after years of trying to wreck the litigation and avoid a Second Amendment showdown. At earlier stages, the NRA sought to consolidate its own case, which challenged the D.C. law on a "kitchen sink" array of rationales, with Gura's. In a 2003 filing, Gura called the NRA case "sham litigation" aimed at muddying his Second Amendment claim." [law.com]
Re:Radio? (Score:3, Informative)
Scalia didn’t really ever say: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”
What Scalia did say was:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
Now that might be objectionable, but it is likely factual (“no basis in text, tradition, or even in contemporary practice”) and what is worse, that he stated fact or that the majority agreed?
Re:I wouldn't count on it... (Score:4, Informative)
I often disagree with Supreme Court justices, but for better or worse, it's hard for me to find a reason for them deciding the way they do except they really believe that's the way things ought to be.
That's a big part of the problem. They aren't there to decide if that's the way things ought to be, they are there to determine if the federal government has the constitutional authority to act on an issue. That's all.
Re:"You thought we would mess it up?" (Score:3, Informative)
They appeared linked at the oral argument, though. Roberts in particular suggested that if they struck down business-method patents but kept software patents, then companies could just implement their business method in some sort of business software, and patent it that way, rendering the fix pointless.
Re:"You thought we would mess it up?" (Score:5, Informative)
You're equating a passage that limits federal power with one that grants federal power. That is a dangerous slope, particularly in light of the ninth and tenth amendments.
Besides, the purpose of those so-called preambles are different, as evidenced by the language used.
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).
The Congress shall have power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This, which you have termed a preamble, is the actual statement. It stands on its own as a complete sentence, and has the copyright portion tacked onto it. Promoting the progress of Science and useful Arts IS THE ENUMERATED POWER. The ability to grant copyrights and patents is a constitutional vehicle granted to them to carry out their responsibility.
Otherwise it would have been phrased:
The Congress shall have power... to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries, promoting the Progress of Science and useful Arts.
Or:
The promotion of the Progress of Science and useful Arts being necessary for the general welfare, the Congress shall have power to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Further note that none of the other powers enumerated in the section contain rationale. If you insist on treating the passage as an explanatory preamble, you must wonder why the framers of the Constitution felt that that one required it. The others didn't.
Re:"You thought we would mess it up?" (Score:4, Informative)
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
The binding statement here is the right of "the People" to bear arms. The preamble can easily be read as a rationale. Note which part stands on it's own as a complete sentence (or more precisely, a complete thought).
That's kind of an awkward example, because we have extensive written documentation of the exact intent of the specific wording of the 2nd Amd, and the first half is actually more than just an explanatory preamble. When the Bill of Rights was being drafted, everyone agreed that enumerating the right of individuals to bear arms in defense of liberty was essential (seeing as how they had just won a war based on being armed and ready to shoot at their legitimate government) but representatives of various states had additional concerns. Primarily, they were concerned that the individual right to bear arms was useless unless the people were guaranteed the right to form local militias, and the federal government would render individual arms useless by forbidding any cooperation except under auspices of a federal military. That's why the 2nd has two clauses.
In a nutshell, the second amendment says: The people retain the right to own guns and form crowds of armed people to do the things that we sometimes need crowds of armed people for, and they don't need federal permission.
Of course, the clearly delineated intent of the original framers is generally ignored, so... whatever.