Obamacare and the Supremes, A Patent Attorney’s Perspective
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course Posted: June 28, 2012 @ 6:25 pm
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Part 1: Not Intended for Liberal / Supreme Court Consumption
A majority of the Supreme Court finally placed a meaningful limitation on the rampant, intellectually dishonest and terribly troubling use of the Commerce Clause to justify everything Congress ever wants to do. Unfortunately (at least in my opinion), Chief Justice John Roberts got in touch with his inner liberal and decided that the individual mandate is constitutional under the taxing power granted to Congress in the Constitution. Rather peculiar given that during the rancorous debates and ultimate passage of the bill the Obama Administration and Democrats in Congress repeatedly proclaimed this was not a tax on the American people. To be fair, the Obama Administration did seem to argue it both ways on the tax issue depending upon the forum. I guess arguing in the alternative paid off even if Congress and the President were dishonest with the American people in public.
I don’t make a secret of my contempt of the Supreme Court. Talk about an insulated group of people out of touch! They seem to believe they know everything about everything, which to anyone with a brain and the ability to exercise independent thought has to be mind-numbing. Throughout history exactly who has ever known everything about everything? Sure, there are the periodic tyrannical despots that believe their own proclamations about being a god of one kind or another, but other than Supreme Court Justices one has to search long and hard for anyone who isn’t worthy of confinement that really believes they know everything about everything.
When dealing with patent matters the Supreme Court likely, although not certainly, knows enough about the issues to fill a thimble. It also would appear as if they know very little about absolute power. Absolute power corrupts absolutely, and giving a group of individuals who aren’t responsible enough to cease from driving off a cliff newfound taxing powers is nearly incomprehensible. It would seem that the Supreme Court doesn’t take their responsibility to protect the liberties of the American people seriously, which is a tragedy.
When I woke up this morning it would have been ridiculous to believe that it would be possible for our elected federal leaders to micromanage our daily lives, virtually mandating that we act as they determine to be in our best interests. That, after all, is the hallmark of a dictatorship or other form of tyrannical regime; not what you expect in the United States of America. But now Congress and the President can determine that virtually anything needs to be forced upon us for our own good, or the good of the majority. Our federal leaders with the assistance of the Supreme Court have done what no country or army has been capable of doing since we won our freedom from the United Kingdom over 200 years ago.
Part 2: The Patent (and hopefully funny) Stuff
With all this in mind, I propose the following methods of balancing the federal budget under the government’s newly found taxing power. At some point in our past, perhaps this morning, these would have been patentable methods for balancing the budget and reducing the national debt. While we could dispute whether they would be sufficiently non-obvious, there would have been all kinds of “teaching away” evidence that would suggest it could never happen, including statements from the Obama Administration, Democrats in Congress and virtually all liberal talking heads who populate the numerous political news/opinion shows on the radio and cable TV. Perhaps they will still remain patentable, at least some of them.
Enforcement may be an issue for some of these methods, particularly given the need to self report on the appropriate IRS tax forms each year. Thus, the penalty and potential imprisonment for tax evasion would need to be steep. Yes, imprisonment. With this new taxing power will come IRS regulation and for the worst among us who evade taxes they go to jail. So who isn’t to say that ultimately someone who fails to have insurance and fails to pay the penalty (I mean tax) won’t go to jail? That seems a bit naive to me based on what I know about the tax laws and enforcement.
Perhaps the linchpin for turning the following methods into something patentable will be the incorporation of an embedded microchip placed under the skin of every man, woman and child in America. That way the IRS can, like Santa Claus, tell when you have been naughty or nice, or at the very least when you roll up to McDonald’s. That should satisfy the “machine-or-transformation” test of Bilski, thereby turning the methods into something that is at the very least patentable subject matter.
Smoking Tax: This method recognizes that smoking is not something that is good for you, which when combined with a $16 trillion national debt provides a perfect revenue generating opportunity. There has been scientific proof for at least two generations that smoking causes cancer, so it is clearly a benevolent mandate to force smokers to pay a “penalty” for their smoking activity. The beauty from a revenue generating standpoint is that tobacco is addictive, which means that it will be a tax that will be difficult to elude owing for many. Since smoking is addictive the tax could also be set at nearly any level without regard for ability to pay.
Fat Tax: This method has a catching name, and will lure the 99-percenters in because initially they will believe that it is some kind of tax on the rich. Thus, in the sound-bit era we live in there will likely be little or no opposition. After all, taxing the “fat cat” rich is practically a progressive mandate, right? Under the radar, however, this tax is aimed at those who are physically fat. The beauty of this tax is that the rate of obesity is extraordinarily high in the United States, meaning that many will simply not be able to avoid paying this tax unless they eat less, which also has the benefit of destroying low paying jobs for those who work at restaurants and the like. Furthermore, the “guidelines” for what makes one overweight are unrealistic to begin with. Now I know I am fat, but over the years I have had many body mass tests and repeatedly I have been told that with 0% body fat I would weigh 198 pounds. Given my height the chart says I am overweight unless I weigh 167 pounds. So there is no way I could ever avoid the tax, and I suspect many of those who ridicule fat people will get tagged with this tax too.
Skinny Jeans Tax: This method hardly needs much explanation. What in the name of all that is right in the world were designers thinking? Does anyone think they look good in skinny jeans? Where on earth are the fashion police when you need them? In any event, those paying the “Fat Tax” certainly wouldn’t be caught dead wearing skinny jeans, and why would anyone who can actually fit into skinny jeans want to demonstrate for all the world to see that they are little more than a frail package of skin and bones? Being too skinny is just as unhealthy, if not even more unhealthy, than being too fat. Because your Congress and President care about you so much they will initiate a “Skinny Jeans Tax” that gives you incentive to eat enough not to look like a fool. This tax comes in two forms. In the “phase in years” it will apply only to those who actually buy skinny jeans. In out years, after fully phased in, it will apply to anyone who could fit into skinny jeans, regardless of purchase or violation of common sense protocols.
Fast Food Tax: This method is related to the “Fat Tax,” but sufficiently different to support its own line item on your annual tax forms submitted to the Internal Revenue Services. While being overweight is one issue, eating fast food at most establishments fills your body with empty calories that are simply not usefully a part of any healthy diet. And don’t get me started on super-sizing! In any event, even those who are not overweight need to be saved from the clutches of cheap, plentiful, convenient food choices. If they cannot be deterred then at least we can put a dent into the national debt!
Exercise Tax: Again, this method is in ways related to the “Fat Tax,” but is a much broader based tax. After all, there are those of us who are fat that do exercise and there are many who are not fat that don’t. Thus, this tax has the advantage to making sure that even the skinny, non-fast food eating Americans will have to pay their fair share! Of course, those fat, fast food eating, couch potatoes will get tagged with paying more. But that is hardly a problem. Fat, fast food eating, couch potatoes obviously have enough money to eat a lot, enjoy dining out frequently and are rich enough to own a couch, which is presumably in front of a TV with some sort of cable or satellite subscription. These “Fat Cats” deserve every dime of new tax. Power to the 99%, or at least to those who exercise.
Ugly Tax: Yes, all taxes are ugly, but that is not what we are talking about here. The “Ugly Tax” is one that applies to people who are ugly. So as to prevent this from becoming discriminatory and costing the less fortunate in the gene pool due to something outside of their control, this tax would apply only to those who consciously choose to be ugly. Further, while the “Fat Tax” will harm the economy and lead to lost jobs in the restaurant sector, and the “Fast Food Tax” will cripple the industry, the “Ugly Tax” will create an economic stimulus. It will, of course, make America a more beautiful place. Anyone who regularly (to be defined by HHS regulation) goes to beauty salons and/or dresses in “smart attire” (again to be defined by HHS regulation) are exempt, as are those who do not pay the “Exercise Tax” due to their efforts to present an overall improved body image. CAVEAT: Through legislation skinny jeans would be prohibited from consideration as “smart attire.” Similarly prohibited would be any apparel worn in the 1970s. HHS may at their election regulate to further prohibit such things as “cutoff jeans,” anything 100% polyester and/or clothing in a state of obvious disrepair at the time of purchase (think ripped jeans and frayed t-shirts) from being considered “smart attire.”
Gas Guzzling Tax: The Gas Guzzling Tax will apply to all vehicles having more than 3 wheels, with triple penalty (I mean tax rates) applying to NASCAR because those machines just go too darn fast and waste too much gas only to go in a circle. During “phase in years” only those vehicles having exactly 4 wheels and which get more than 40 miles per gallon will be exempt. In out years, after fully phased in, the MPG requirement raises to 45, then 50, then jumps to 75 without any regard to scientific reality. The purpose of this tax is to encourage people to use motorcycles, which get better gas mileage, and to raise revenue since we conclusively know that Americans overwhelmingly prefer vehicles that will not be exempt. To attempt to have the perception of fairness, RVs and the like will be taxed at a higher rate, which recognizes that these devices use more gas, pollute more and are owned by rich “Fat Cat” retires who may not otherwise sufficiently be taxed given the likelihood that many such retires will not qualify to pay the “Fat Tax,” “Skinny Jean Tax” and “Smoking Tax.” They may also be able to otherwise avoid the “Ugly Tax” by visits to the salon.
Travel Tax: This method realizes that it just isn’t fair that the environmentally conscious (and Hells Angels) don’t have to pay for basic roadway maintenance, which is a government expense. An expense that is supposed to be taken out of tolls collected, but we know where that money really goes, don’t we? The tax also has the virtue of allowing the government to punish (I mean tax) those who fly and those who own a boat and other unnecessary recreational vehicles. The Department of Transportation, the Department of Energy, EPA and the Department of Interior, will all have regulatory to promulgate needlessly complex and contradictory rules that all must be scrupulously followed.
Specific Stuff We Don’t Want You to Consume (SSWDWYC) Tax: The SSWDWYC Tax is a catch-all tax aimed at generating maximum revenue and doing maximum harm to the economy, which will mean that American’s won’t be able to afford the price of gas will drive less, assuming of course that the “Travel Tax” and “Gas Guzzling Tax” don’t already prove successful enough. The SSWDWYC Tax would tax anyone who consumes any type of alcoholic beverage, any sugary soft drink (homage paid to Mayor Bloomberg for the idea) and any sandwich that is too big to eat as a sandwich. The “this sandwich is to big” criteria will be defined by the distance between a bottom surface of a bottom bread item and an upper surface of a top bread item being of a width no greater than “comfortably” (to be defined by HHS regulation) insertable into the mouth of an average person. NOTE: Since California has so many electoral votes, “medical marijuana” (wink… wink… nod… nod…) will be specifically except from the SSWDWYC Tax.
To quote the words of the heavy metal band Metallica in Enter Sandman – you better “sleep with one eye open, grippin’ your pillow tight.” After all, that may be the only way to avoid the “You Slept Too Much This Year” Tax.
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About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.