Bilski FTW

One might add another case: AT&T v. Microsoft, issued on the same day as KSR v. Teleflex, which asserted that patents do not extend to software on a DVD-disk, tape, or similar medium of transmission, and especially not to source code in that form. I would point out that in each patent case, the Supreme Court has ruled about as widely as possible, given the facts before them, and the basic grounds of analysis appropriate to those facts. It is in the nature of the Court’s position that it does have to wait for cases to come to it, though it may stretch a point with wide rulings.

The Supreme Court intends, at minimum, to diminish the scope of patents, as it has done in a series of cases over the last couple of years. The only question is how much, and how fast. The Solicitor General of the United States, speaking more on behalf of the Patent Office than of the President, merely asked the Supreme Court to go slow in Bilski, that is, not to try to decide everything about software patents in one decision, but to wait until something like the MPEG patent portfolio (*) worked its way up the courts, presenting a real case with substantial stakeholders. The patent lobby, that is the patent lawyers, the patent trolls, and perhaps certain sections of the Patent Office, is seriously unhappy about the Supreme Court’s ongoing diminution of patents. Some few big companies, eg. Microsoft, Apple, IBM, are more or less conflicted. The pharmaceutical industry is afraid that patent-curtailment might spread to their business. All of these together represent a tiny portion of the country. They could not get even one state to secede from the Union and to fire on U. S. Army posts within that state’s territory, as the slaveholders did in 1861.

(*) Parenthetically, the JPEG2000 file format for still images has been a dismal failure. It only achieves a twofold reduction in file size over standard JPEG, and the twofold savings has not in practice proved great enough for a sufficient number of people to want to take the risks of file incompatibility and patent problems. The same logic may apply to large sections of the MPEG standard, notably MP3, in which case relevant patents will probably expire before a Supreme Court case can arise. Of course, this does not address the real issue, that of gross corruption and incompetence in the patent system.

If the Supreme Court decides to abolish software patents, and related patents, such as those applying to electronic boxes, there will not be many politicians willing to end their political careers, the way Rep. Bart Stupak did over ObamaCare. I think the dominant attitude in Congress will simply be to do nothing about patents until such time as the Supreme Court may demand that they write a new law. The Supreme Court could simply invalidate the patent law in its entirety, and invite Congress to write a new one, conforming to certain requirements. That happens very occasionally, for example, in the death-penalty controversy of the late 1960’s and early 1970’s, and the immediate effect was an incidental clemency for some hundreds of convicted murderers, who had their death sentences reduced to life-imprisonment (with parole), and were often free within a few years. If the Supreme Court went to this length in the matter of patents, all existing patents or pending patent applications, regardless of subject matter, would presumably become null and void, because there would be no law under which they could be upheld. I cannot see why the Supreme Court would need to go to this length.

Certain of the more hysterical proponents of software patents claim that Congress will do something to reverse the Court’s actions. However, over-riding the Supreme Court is an enterprise fraught with peril, seriously attempted only in the most extraordinary circumstances. I can think of two cases. The first case was in 1861, during the Civil War, involving President Abraham Lincoln, Chief Justice Roger B. Taney, and Habeas Corpus. It involved a Maryland officer who had undertaken armed action tending to bring Maryland into the war on the side of the Confederacy, or at least to maintain an armed neutrality, and effectively prevent the retaking of the South. The government essentially ignored the Chief Justice’s action, instituting martial law in the doubtful areas of the Mid-South, and Taney died in 1864. The second case was during the Great Depression, and involved President Franklin Delano Roosevelt and the National Recovery Act. After threats of packing the court, Roosevelt came up with less extreme legislation having the same effect as the National Recovery Act, and the Supreme court accepted this. In both cases, the President was dealing with a revolutionary situation. Lincoln was facing actual armed rebellion. Roosevelt was facing a depression so severe that it brought Hitler to power in Germany, and produced would-be-Hitlers in this country, such as Huey P. Long, and Father Coughlin. The President of the United States is the only person authorized to even claim the justification of national emergency to over-ride the Supreme Court (and he may very well be impeached for making such a claim). There is no regular legal procedure to over-ride the Supreme Court, short of a constitutional amendment. The attempts, as I have noted, involved messy improvisation. If you do not have the President of the United States on your side, forget about it.

I think the larger point is that the Supreme Court is becoming educated in matters pertaining to Intellectual Property. The Court is learning what a patent troll looks like, how one talks, etc., and when the Justices come to deal with copyrights again, they will be prepared to recognize copyright trolls when they see them.