State of Innovation

Patents and Innovation Economics

Is the Supreme Court Competent to Rule on Patent Cases?

It is generally recognized that jobs or tasks require certain skills in order for a person to competently perform them.  For instance, a general practice medical doctor is not competent to perform brain surgery.  This does not mean that if the general practice doctor underwent a couple of years training, they could not become competent.  Competence is defined as:

   a. The state or quality of being adequately or well qualified; ability.

b. A specific range of skill, knowledge, or ability.

(According to Free Dictionary Online)

 

In patent law it is generally recognized that a patent attorney needs both a strong technical background and an understanding of patent law.  Patent attorneys have to take a separate bar exam on just patent law and have to prove they have taken a certain number of college level science and engineering courses.  Do any of the Supreme Court justices meet this definition?

 

John Roberts, A.B. History Harvard College, J.D. from Harvard

Antonin Scalia, A.B. History Georgetown University and University of Fribourg, Switzerland LL.B. Harvard

Anthony Kennedy, B.A. Political Science Stanford University and London School of Economics, LL.B. Harvard

Clarence Thomas, A.B. English Literature Holy Cross College, J.D. from Yale

Ruth Ginsberg, B.A. Government Cornell University, LL.B. Columbia Law School

Stephen Breyer, B.A. Philosophy Magdalen College, Oxford, LL.B. Harvard

Samuel Alito, B.A. Princeton, J.D. Yale

Sonia Sotomayor, B.A. History Princeton University, J.D. Yale

Elena Kagan, A.B. History Princeton, M. Phil. Oxford, J.D. Harvard

 

Not a single Supreme Court justice has passed the patent bar and not a single Supreme Court justice has an engineering or science background.  Clearly, by this standard the Supreme Court justices are in-competent to rule on patent matters.

You might argue that while the Justices do not have the required background, they are still smart enough to rule competently on patent matters.  This argument also fails.  No competent client or attorney would ask any of the Justices to write a claim for a patent.  No patent law firm would hire any of the justices to write claims for their clients or ask them to do an infringement or clearance opinion.  I think this is overwhelming evidence that the Justices do not have the practical background to rule on patent cases.  This incompetence has been demonstrated in a number of recent cases.  Below are just a few examples of their inability to understand patent law and technology.

 

*Oral Argument: Association for Molecular Pathology v. Myriad Genetics (Technical Incompetence):

The Justices made analogies to baseball bats and chocolate cookies in trying to understand this case involving genetic testing for breast cancer.  No person competent in genetics would find any of these analogies helpful.  Can you imagine a lecture on genetics where they attempted to use these analogies to explain what is happening in a genetic test?  Clearly, the Justices do not understand the technology and are attempting to make invalid – absurd analogies in an attempt to do so.

 

*Mayo Collaborative Services v. Prometheus Labs., Inc. Supreme Court 2012 (Legal Incompetence):

The Supreme Court held “The three steps (of the claim) as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.”  P. 10  35 USC 103 states

A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

The Supreme Court specifically ignored the statute.  The law specifically prohibits looking at each step /element of a claim separately.

This also demonstrates the Supreme Court’s ignorance of Physics.  Every invention ever made involves steps (elements) that were known individually before the invention; and is subject to the laws of nature.  You cannot create something out of nothing – it’s called Conservation of Matter and Energy.  You cannot violate the laws of nature.

The opinion also states patents are monopolies in three spots and mentions rent seeking in one spot, but it does not mention that the Constitution clearly states that inventors have a RIGHT to their invention.  The patent statutes specifically state that patents are (have attributes of) personal property.  35 USC § 261.  The Justices ignored both the Constitution and the statute.

 

*Bilski v. Kappos (Legal Incompetence): The Court confuses statutory subject matter 101 with Novelty 102 and Non-Obviousness 103.  For instance, Justice Kennedy writes:

“In light of these precedents, it is clear that petitioners’ application is not a patentable “process.  Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk: Hedging is a fundamental economic practice long prevalent in our system of commerce and taught in any introductory finance class.” p. 15.  Whether Bilski claims a well known economic practice is irrelevant to a 101 analysis that is the province of 35 USC 102 & 103.  This also shows that the Justices do not know how to read a claim.  The claims of Bilski are related to hedging, but do not claim hedging in general.  Bilski defined a system that used hedging to provide flat rate billing to small customers that could not hedge their own risks.  The Justices read the claims as if they were prose, when any competent patent attorney knows that claims have to be read like an equation.  Each word has to be given meaning.

 

*KSR Int’l Co. v. Teleflex Inc. (Legal and Technical Incompetence): The Court stated, “A court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions.” P. 417.  Every invention is a combination of prior art elements.  The Court is ignoring 35 USC 103 see above.  Every element functions as it should according to physics, it cannot violate the laws of physics.

The Supreme Court goes on to states, “In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends.  Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility.” Id. At 419.  (This sort of writing should get you an F in English composition 101)  Almost all inventions are driven by market demand.  Inventors are in the business of making money.  According to the Supreme Court inventors should only get patents on inventions for which there is no demand.  Do they even read their own opinions?

 

*eBay Inc v. MercExchange, L.L.C., 2006 (Legal Incompetence): The Court held a permanent injunction should not automatically issue as part of a judgment of infringement.  A patent is a legal right to exclude, 35 USC 154, others from making, using, selling (offering for sale), or importing the invention.  The Supreme Court’s eBay decision is in violation of the law 35 USC 154.

 

Having the Supreme Court rule on patent matters makes about as much sense as having an English literature professor (who never took any college level physics) teach quantum mechanics.

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July 9, 2013 - Posted by | -Law, -Philosophy, Patents | , ,

4 Comments »

  1. The false belief that you are competent in a specific skill area when in fact your are not is sometimes referred to as the Dunning–Kruger effect.

    See http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect

    When it comes to the crossover of patent law with computer or biotech technology, the Supremes have DK syndrome in spadefuls.

    Comment by step back | July 9, 2013 | Reply

  2. It is funny I believe I have noticed this with people who have a little technical skill. They tend to be very good at say mechanical items. But then they think they either understand electricity or suggest that I need to free my mind from the shackles of Maxwell’s equations or some such nonsense.

    Comment by dbhalling | July 9, 2013 | Reply

  3. Actually we all suffer from one form of DK syndrome or another.

    The area of “logical fallacies” and our susceptibility to many of them is an example,
    See the right side of this page: http://www.logicalfallacies.info

    The good thing is that most of us are blocked from influencing decision making in our areas of gross incompetence. Plumbers aren’t permitted to perform brain surgery. Brain surgeons,if they know what’s good for them, don’t try to fix a leaking water main.

    Regrettably, the Supremes allow themselves to dabble in areas where they know not the extremity of their incompetence; biotech and software patents being just some of many more such areas of unappreciated incompetence.

    Comment by step back | July 10, 2013 | Reply

  4. Good point and why no one would put me in charge of creating a song or singing a song.

    I would say this is true of most people higher up in our government, which is why the power of government has to be severely limited.

    Comment by dbhalling | July 10, 2013 | Reply


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