Context
The U.S.
patent office's home page cites a report that says that intellectual property-intensive industries contribute $5 trillion and 40 million jobs to the U.S. economy, which amounts to 34.8% of GDP. Patents, copyrights and trademarks are among the various forms of intellectual property (IP). Given the size of the contribution of IP to the economy, one can reasonably argue that patents are an important part of the U.S. economy, say 11% for the sake of argument (about $1.6 trillion). You can decide for yourself if that's something worth considering.
Incoming boat on a hazy day
San Diego harbor, April 20, 2012
Patents are like a federal deed to a piece of real estate, except the property isn't real estate like a lot of land in a subdivision. The deed is for things like (i) new compositions of matter or manufactured items (chemical compounds, drug molecules, formulations that contain a drug, a game for a Game Boy or Xbox, an ink cartridge for an ink jet printer etc.), (ii) new methods of doing things, (treating a patient with a drug, making cement, drilling for oil, transmitting data using
WiMAX,
802.11n or
4G LTE technology, etc.), (iii) new machines (computers, earth moving machines, oil drilling rigs, a dentist's tooth cleaning device and so on) or, and this one is important, (iv) a new improvement on any of those things. In addition to being new, those things must also be, e.g., not obvious and they can't be laws of nature (E = mc2, 2nd law of thermodynamics, etc.), natural phenomena (whatever that may be) or abstract ideas (you know it when you see it).
A patent claim is what defines the IP the patent owner owns and can sue others to prevent them from making, using or selling. A patent may or may not not grant the owner the right to use the patented invention, depending on the existence or absence of other "dominating" patents. The patent's power is the right to exclude, not necessarily use. A patent and its claims
look like this drug-related patent or this
pixel circuit patent (click on the "claims" link to see the claims at the end of the patents). Although many people and usually federal courts see a patents as a monopoly (and thus suspect it as being some sort of evil), that's not accurate. Because what a patent claims has to be new, its not like owning all of some mineral or shipping or trade rights or a resource such as fresh water or oil. The point of patents is to incentivise people to invent new and useful things
that will ultimately
be useful to society after the patent expires. In the meantime, wealth can be created.
The Supreme Court is the final decider of which patents are valid and which aren't. They decide what subject matter is patentable and what isn't. Supreme Court justices are mostly hard core liberal or conservative ideologues and when they can, they will decide cases based on their ideology (
argued here before). Finally, the Supreme Court is a generalist court. It is not populated with technocrats, scientists or engineers. The justices are mostly lawyers with undergraduate majors in non-technical areas like
history,
public policy,
philosophy,
government and
religion.
A really big boat
The issue
In California Moderates (CM) opinion, the supreme court doesn't understand technology for the most part and is often incompetent to decide technical cases. Some astonishingly bad patent decisions in the last 5-10 years indicates a real problem. Their recent decisions are mostly bad in the sense that their decisions will hurt the U.S. economy and they undermine the capacity of American inventors to protect their new inventions. As
mentioned here before, the U.S. patent system is under attack by hostile federal courts for reasons completely beyond CM's understanding. Congress could easily step in and resolve major areas of confusion that the supreme court has injected into patent law. However as has been argued here endlessly, congress is inept, out to lunch, distracted by lobbyists and generally just plain worse than worthless. They aren't going to lift a finger, but that's probably for the best because they are no better than the courts at figuring out how to do even simple things simply, clearly or competently when it comes to patents (and most everything else).
Technoidiots: In short, America has a critical shortage of people in the federal courts and congress who know what they are doing when it comes to dealing with patents and complex technologies. This is a very serious problem for our economy and competitiveness with no possible solution anywhere in sight. Both parties are completely distracted and/or misled by their vicious death struggle with each other, lobbyists, blinding ideology and so on. Remember SOPA and the mess associated therewith?
Amazingly little wake, i.e., its efficient
An example: On March 20, 2012, a unanimous
Supreme Court in Mayo Labs v. Promethius Labs, decided that subject matter claimed by patent Nos.
6,355,623 and 6,680,302 was not valid because it claimed the "law of nature" of administering a man-made drug to patients and then measuring the level of a metabolite of the drug to see if the dosage needed to be adjusted up or down. Some of the "logic" behind the Promethius decision was this (Breyer's decision):
"Patent protection is, after all, a two-edged sword. On the one hand, the promise of exclusive rights provides monetary incentives that lead to creation, invention, and discovery. On the other hand, that very exclusivity can impede the flow of information that might permit, indeed spur, invention, by, for example, raising the price of using the patented ideas once created, requiring potential users to conduct costly and time-consuming searches of existing patents and pending patent applications, and requiring the negotiation of complex licensing arrangements. At the same time, patent law’s general rules must govern inventive activity in many different fields of human endeavor, with the result that the practical effects of rules that reflect a general effort to balance these considerations may differ from one field to another."
What???
CM can't speak for anyone else, but that quote (logic) is incomprehensible. Of course you have to get a license if you want to make, use or sell something someone else has patented. That's the
whole point of the patent system. And, so what if it costs money to negotiate a license? That's called the cost of doing business. Either its worth it or it isn't. Worse, Breyer's incoherence gives practitioners no guidance to the logic the supreme court applies to this law (
35 USC 101) governing what is and what isn't patentable subject matter. Trying to understand drivel like that is about the same as reading fresh entrails from a goat at midnight under a full moon.
The last Tawara-class amphibious assault ship;
Commissioned May 1980; Home port San Diego
The Promethius decision says lots of other things, but those are equally incoherent, e.g., it mentions the completely undefined "inventive concept" as somehow being important to what is patentable subject matter. As usual, the court leaves no guidance as to what they are thinking or why they think it. It is unclear why administering a man-made drug to a patient and measuring serum metabolite levels is a "law of nature". What law of nature the court is talking about is clear as mud. If administering a drug to a patient is a law of nature, then patents that claim the use of a drug to treat a disease would be invalid. That would blow a massive hole in the pharmaceutical industry. Maybe that's what the supreme court wants to do. There's just no way to know.
Ignore facts that hurt
One fact in the case was that Mayo clinic (the entity that got sued for infringing Promethius' patents) had independently developed a new but similar lab test for adjusting the dosage of the drug. In other words, Mayo developed new technology in the face of existing patents, i.e., the "very exclusivity" of Promethius' patents didn't impede or prevent new innovation. That fact flies completely in the face of the court's logic. How did the court deal with it? In the usual manner - it simply ignored that fact. The court ignores facts all the time when the facts get in the way of a result they want. That's not
strict constructionism, its illogical bipartisan judicial activism from a unanimously clueless supreme court court.
CM doesn't have a problem with either strict constructionism or judicial activism*, if that's what legally makes sense under the facts of any given case and reasonable logic can support it. However, there is a problem when the court wants to reach a decision despite contrary facts, law and logic. That's what this decision is. An irate court (justice Breyer specifically - the rest of them apparently didn't much care one way or the other) didn't like what Promethius owned, so they just took it away in a fit of pique. The wreckage they leave in their wake could be quite significant. The poorly drafted and inarticulate opinion in Promethius affects hundreds, maybe thousands, of issued patents and it will likely kill hundreds or thousands of pending applications.
Secretary Panetta messing around on the Peleliu
March 30, 2012
* In normal usage, those are empty terms usually devoid of meaning. Conservatives usually say something is strict constructionism if they agree with a court decision. If they don't, its judicial activism. On the other hand, liberals didn't usually talk in those terms. That is, until the recent challenge to Obamacare the court is now considering. If Obamacare is held unconstitutional, that's judicial activism from the liberal point of view. Of course, overturining Obamacare would be strict constructionism from the conservative point of view. The terms are generally just empty talking points the two warring sides use to manipulate the public into thinking there are only two ways to look at reality.
A follow-on case,
Myriad Genetics (now remanded to the
court of appeals for the federal circuit [CAFC] by the supreme court) could be the death knell for gene and cloning patents and for many diagnostic technologies. If that happens, the "logic" of the Promethius case will likely be the "precedent" to overturn decades of contrary precedent. The wreckage will include loss of most of the economic activity that is patent protected. That technology would then be freely available to the lowest cost producer, i.e., China, India, etc. People who like that outcome will argue that's to America's benefit. CM argues its to America's detriment because American time and resource went into the invention but there is no payback.
The Promethius decision is very controversial within the patent law community (
link 1,
link 2,
link 3). Some of the comments after those commentaries show that patent people can be as vicious and personal in their attacks as any foaming at the mouth hard core political or religious ideologue. It may the case that patent law needs to be intelligently and carefully reconsidered in terms of cost-benefit to the U.S. economy, but incoherent blasts like this from the supreme court aren't helping. The court is in in over its head.
Conclusions
The supreme court is attacking patents and leaving in its wake incoherent chaos, unpredictability and needless economic loss. They do that in the face of decades of law from the CAFC, which congress specifically created to clarify patent law and to make more predictable and logical determinations such as (i) what is obvious and what isn't (now destroyed in the
KSR v. Teleflex decision) and (ii) what is patentable subject matter under 35 USC 101 and what isn't. CAFC judges include scientists specifically to help the courts with understanding complex technology.
The supreme court is above all that mundane pragmatic stuff. They like elegant high flying legal theories that only they understand and can articulate only to themselves. To most of the rest of us, its incomprehensible and worse than useless. Much of the CAFC's prior three decades of work at clarifying congress' generally hopelessly ambiguous patent law is now blown to smithereens by an out of control supreme court with generalist justices appointed by an out of control political system that demands political and religious ideological loyalty before judicial competence.
If president Obama is worried that this court could blow Obamacare to pieces, his concern is fully justified. When the mood strikes them, this bunch will do whatever they want for any reason or for no reason.
A frog in the soup pot
Our economy is in real serious trouble on this issue. Most of the public and press is completely unaware there is even an issue worth discussing. Sometimes America really does look like the frog in the soup pot with the heat on low. America will be cooked before it even knows it is in hot water.
Photo from Shelter Island pier - March 20, 2012
