Intellectual Property

Court Punts on Patent Case


Last fall, the Supreme Court heard arguments about Bilski v. Kappos, a case that revolved around the question of whether or not the patent system should extend to cover "business methods." As Larry Downes explained at the time, the specific dispute was over the patentability of "a paper-and-pencil system for hedging weather risks in consumer energy prices," but the specific process under dispute was of minimal importance. Interest in the final ruling was high because the case had the potential to be a game-changer for the patent system; many in the intellectual property arena believed it was likely that the Court would definitively end the practice of granting patents to business methods—which would have serious implications for software patents as well.

But yesterday, the court offered a ruling that was far more limited in scope. According to Downes, the decision "basically did nothing to change patent law or to settle enormous and mushrooming uncertainties, both for business methods and, more generally, for software applications." For court and IP nuts, Downes's entire analysis of the case and the decision, which offers some convincing speculation about why the ruling came down as narrowly as it did, is well worth reading. For a short take on the policy merits of similar types of patents, see Cato adjunct Tim Lee's case against literary and software patents here

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  1. LOL, thats our Supreme Kangaroo Court for ya, bought and paid for.

    1. Wow Terry, that makes a lot of sense if you think about it.

      lou —

  2. That headline is racist against half-distracted foul-mouthed speed-readers.

    1. Don’t be racist against his albino.

  3. Threadjack: Anybody mention that kos is filing suit against his pollster Research2000 for selling him 1.5 years worth of fake polls? Apparently they lead to tremendous squandering of resources on DemocRAT primary races such as the recent Senate contest in AR as well as providing phony data for his book American Taliban. Seems the nutroots got ratfucked big time.

    I’ll just leave the Google news link:…..=kos+polls

    1. My apologies if this has been mentioned elsewhere on H&R. I thought it relevant because (among other reasons) Moynahan was alarmed by the Taliban Teabaggers that showed up in the bogus kos/R2000 poll.

      1. OK I shoulda searched first. Can’t believe I missed the post.

        1. Don’t you feel silly now? Note to the children: don’t be a threadjacker!

  4. I’m not convinced that Patent law has any remaining value. Let’s junk it.

  5. might be a good time to look for a job.LV Bags My husband

  6. Yes, it is a rare occasion that I should agree with Stevens over Thomas, but hey, shit happens – just don’t smear it all yourself and dance around.

    There is actually a commendable aspect to the Court not wading into this sewer – there was no grave Constitutional question, just bad policy. This is an issue that really should be decided in the political arena – unfortunately that crowd lacks both the brains and the spine to do so. But that doesn’t mean SCotUS should step in, and they didn’t.

    1. There is actually a commendable aspect to the Court not wading into this sewer – there was no grave Constitutional question, just bad policy.

      Of course there is a constitutional question. Patents are put in place to encourage development of the engineering arts.

      A grant of monopoly on a way of doing business is far out of scope; in theory means that the government can grant a monopoly to anyone under the sun for any new way of selling stuff. We end up in a regime that is very similar to the Elizabethan one where the queen decided who got the lucrative salt monopoly. It’s one of those grievances that our ancestors fought the war of independence over.

      Of course, this is one of the contradictions inherent to building a society based on free enterprise while undermining it with a system of patents of monopoly.

  7. Of course there is a constitutional question.

    There was no question of the power to grant patents. The issue was over the extent of what should be patentable – a matter of statute not Constitution. Or can you tell me, where in the “Progress and useful arts” clause of the Constitution are the contours of that power described, of what shall and shall not be patentable.

    1. SO basically, you’re arguing that since the U.S. Constitution does not limit explicitly what patents of monopoly the U.S. government can grant, other than hand waving comments about “promoting progress”, that the Congress could grant me a patent on monopoly on salt for all of the United States and it would be constitutionally OK?

      Hmmm, I’ll have to add that argument to my arsenal of Lysander-Spooner-inspired arguments as to why the U.S. Constitution provides convenient cover to those who wish to establish a tyranny over us.

      1. other than hand waving comments about “promoting progress”,

        Well there is that whole body of common law. Heck, what did those stupid founders know, putting that language in as an express power of Congress. You think they would’ve been a helluva lot more precise on EVERY power they granted Congress (particularly if they had any foresight as to how far the people would allow the govt to go).

        Dude, seriously, this case did not raise a Constitutional issue; not all cases before SCotUS do (most, but not all). It would be insane for the Court to make an issue of something that is not in the pleadings of either party. The respondents did not challenge the entire patent edifice – just the extent of patents to ‘business processes’ (which the Circuit had tossed). If you want to invent a case against all patents, fine, but that wasn’t the issue here.

        I’m all for reining in abusive patent practice, and the bogus crap of copyright forever (not there yet, but working on it). One way would be to amend the Constitution to strike that clause, but I wouldn’t put a lot of hope on that – too much money in IP. Frankly, for the same reason I’m not hopeful of any change coming out of Congress. I guess you think the Court should just rule the whole clause out of the Constitution? Hey look, we made that disappear!

        1. I really am raising two issues:

          1) Patents or monopoly & private property rights are inherently incompatible. Of course this is normative & has nothing to do with the U.S. Constitution – other than being one more damning piece of evidence as to the tyrannical motivations of the cabal that hijacked the convention to amend the articles of confederation to birth it. 🙂

          2) Many people fail to realise that the term “useful arts” was used to describe the field we call “engineering” today. Business method patents are unconstitutional on their face since they are not properly classed as bits of clever engineering.

          Would I love to see the court declare all patents unconstitutional. That’s certainly one bit of living constitution doctrine I could get behind, much like appreciating a bad call by a ref that denies the other team a run. 🙂

          Realistically, I’m more likely to get a pony than to see that happen.

          But, I would love to see the court actually enforce the Constitution as written, because as inherently tyrannical the government it defines is, it’s better than the one we have now.

      2. “Congress could grant me a patent on monopoly on salt”[?]

        Yes. In Bizarro World.

      3. Congress could grant me a patent on monopoly on salt for all of the United States and it would be constitutionally OK?

        You’ll have to do better than that. A monopoly on salt granted by the patent office would be unconstitutional because it would not represent a “progress of science and useful arts.” Obviously that would be struck down, unless it was a new method of prodution/delivery/whatever, in which case the patent would extend to that method only. However, outside of something obvious and stupid like your hypothetical, the court is not going to dictate exactly what constitutes progress or useful arts, nor should they.

        1. The term “useful arts” in the 1700’s had a very specific meaning; we use the word “Engineering” for it now.

          Business methods are not part of the “useful arts”.

          A business method patent is far closer to a patent on salt than say, a patent on a new type of turbine blade. If the term “useful arts” can be construed as covering a way of doing business, then it can be construed as allowing anything under the sun – including granting patents on selling salt.

  8. You can read a bit better case against patents and intellectual monopoly here… 🙂…..lsory.html

  9. If you don’t think patent law needs to be limited, how about this:

    Method of swinging on a swing

    Or of more practical importance:

    Patent law is getting tax crazy

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