Monday, July 5, 2010

3 x 3 Blind Bilski Justices

Over at the IP WatchDog site, I posted the below irreverent proposal:
  If I were to draw a picture of the 9 U.S. Supreme Court Justices circling the Bilski v. Kappos elephant, I would ...
  place each one outside the 3 point basketball circle relative to the elephant and put a Geiger counter or compass in the hand of each blind Justice whereby each senses the “spin” around the Bilski claims but none of them actually touches and “gets it” directly (by hand or even with a blind man's walking stick).

In this hypothesized cartoon, one Justice would be saying, “My Geiger counter says it ‘feels’ that the Bilski elephant is too “abstract”. I say the physical steps in Bilski were never there to begin with and certainly I don’t see them.”

Another would say
, “My sundial is foreshadowed by an ancient sun and indicates that the Founding Fathers would have frowned on this sort of progress. The business of patents is not business –irrespective of whatever the word “business” might mean”.

A third would say, “My MRI spin machine indicates this creature is an "information" provider like a teacher or a trainer, for example a horse whisperer or an antitrust law lecturer and therefore the creature “explains” the abstract conceptualizations revolving around the hedging thing and nothing more substantive than that.”

A fourth would say, “I hate 4 of you and I don’t care which way my compass needle is pointing. It’s all gobbledygook. But to spite the 4 I hate, I’m going to cast my vote in a direction opposite to my expressed beliefs. So there. Gobbledygook on that one you subhuman foursome.”

And a 5th one would say, “I love you anyway Spartacus and therefore I’m going to pretend I am concurring with you. Come here and give me a big hug.”

Some might think the imagery is mere comic relief.

But perhaps the 9 Justices are indeed without a clue and begging the academic community out there to help with prodding at the beast?

Note the following excerpts from the majority opinion of Bilski v. Kappos:

The United States Court of Appeals for the Federal Circuit [CAFC] heard the case [(In re Bilski)] en banc and affirmed. The case produced five different opinions. Students of patent law would be well advised to study these [5] scholarly opinions.

[Then] Chief Judge Michel wrote the [majority herd] opinion of the [CAFC] court [and] rejected its prior test for determining whether a claimed invention was a patentable “process” under §101—whether it produces a “‘useful, concrete, and tangible result’”—as articulated in State Street

Judge Mayer argued that petitioners’ application was “not eligible for patent protection because it is directed to a method of conducting business.” He urged the adoption of a “technological standard for patentability.”

Judge Rader would have found [as we the majority here find that] petitioners’ claims were an unpatentable abstract idea.

Only [that lone and obviously irrational wolf,] Judge Newman disagreed with the court’s [herd like mentality and] conclusion that petitioners’ application was outside of the reach of §101.

The above passage is a clue.

The SCt Nine are sort of admitting that they do not have the same, a clue; and are instead relying on what the horse whisperers around them are whispering into their ears. The amicus briefs apparently had great effect. Note this passage:

As numerous amicus briefs argue, the machine-or-transformation test [MOTT] would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e.g., Brief for Business Software Alliance 24– 25; Brief for Biotechnology Industry Organization et al. 14–27; Brief for Boston Patent Law Association 8–15; Brief for Houston Intellectual Property Law Association 17–22; Brief for Dolby Labs., Inc., et al. 9–10.

... Still Under Construction

Link to an older post: What is "software"?

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