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Obamacare and the Supremes, A Patent Attorney’s Perspective


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: June 28, 2012 @ 6:25 pm
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Chief Justice John Roberts

Today’s Supreme Court ruling on Obamacare is historic.  This issue has dominated political and private discourse for the past several years in America and, therefore, it is unrealistic to believe any legal commentator could resist the temptation to comment or opine.  While Obamacare and the Supreme Court decision have nothing to do with intellectual property, I will, to the best of my abilities, turn this into a tongue in cheek patent commentary.  Of course that is after I bash the Supreme Court.  So liberals and others who believe the Supreme Court knows anything about anything should probably skip Part 1 and jump right to Part 2 of the article.  I had a blast writing it.  Hopefully you will have as much fun reading.

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.

The Methods

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.

Conclusion

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.

You are now free to resume your otherwise scheduled daily activities… for now at least.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles

About the Author

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.

 

18 comments
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  1. ugly tax sounds like a real innovation that deserves patent protection.

  2. Thankfully; though I’m sure the democrats wished it were otherwise; there is no Obamacare in Heaven.

    One can only try to imagine the abject horror on the faces of our Founding Fathers were they able to witness in action the monster the federal government has become.

    And we carry half the blame and half the shame . . . because we’re who put them into office (and they then chose the judges).

    How can our children . . . and their children . . . and all the children yet to come . . . ever forgive us for what we’ve all done?

  3. Gene,

    A few more taxable subject matter categories to add to your tongue in cheek post:

    11. The “Thinking Patent Attorneys are Exceptional Tax”: This one is applied to people who publicly proclaim a belief that separate from the rest of the human population, patent practitioners are a breed apart and have an exceptional and exclusive claim on rational thinking and on knowing what is real and practical as opposed to what is imaginary or impractical.

    12. The “Thinking Money is Real Tax”: This one is applied to people who publicly proclaim a belief that separate and apart from other mythical, magical and fantasy beliefs which others in the human population hold, patent practitioners are entitled to a “rational” belief (thanks to rational underpinning from KSR) that money is real and that uncontrolled allocation of this out-of-thin-air stuff in a so-called free market system will unleash the wisdom of Mr. Invisible Hand and enable the latter to correctly manage pandemics and other public health issues.

    13. The “My Political Party is Good and Yours is Bad Tax”: This one is applied to people who publicly proclaim a belief that because the folk in their tribe crack their morning’s poached egg at the “right” end, rather than at the “leftist” wrong end, they have the right view of how the world should be run and the others have the wrong view.

    14. The “Tax Everyone Else But Me Tax”: This one speaks for itself. Just put your ear next to your computer screen and listen.

    :-)

  4. Gene,

    Obamacare was enacted by a corrupt process, Nebraska Kickback, Louisiana Purchase, and all, and therefore, by definition, is a corrupt law. That a majority of SCOTUS upheld this corrupt law on the fabricated Constitutional ground (taxing authority) that you and Kennedy’s dissent correctly identify as bogus gives me the ultimate Excedrin headache. The Obamacare decision ranks right up there with Kelo v. City of New London for how SCOTUS has turned our Constitution on its head. What little respect I might have continued to harbor for SCOTUS after Mayo Collaborative Services is now completely GONE.

  5. EG et al.

    What you call “corrupt” is the way Congress has done its work since the first Congress met. Cloakroom dealing is the way laws are passed.

    Those of you old enough to remember the howls from the ultra right after Brown v. Board of Education of Topeka, Kansas, as I was, will hear the echoes in the comments here. You do not like the decision. Many people did not like the result in Citizens United. None of it matters one bit. The law is what it is. Repeal of any law is extremely unlikely. (Talk about a total waste of time that Congress could better use on real efforts.)

    As to Gene’s attempt at satire: since the first income tax laws, there have been provisions that rewarded people for behaving in ways Congress thought best for us. Consider as a simple example, in order to assist the home building industry and those dependent thereon, the tax code grants a deduction for home mortgage interest. If you elect not to buy a home, you pay a higher rate. So, what else is new?

    No big deal.

    Tifoso

  6. “You do not like the decision.”

    Tifoso,

    It goes beyond not liking the decision (and I definitely don’t like the decision or Obamacare and how the process for its passage was manipulated and misrepresented by both Congress and the President). The Obamacare decision is grounded on the legally flawed premise that its constitutionality can be based on the taxing authority, even though Congress and the President never based it on the taxing authority (and studiously avoided doing so for obvious political reasons), but instead on the Commerce Clause. As Kennedy’s dissent correctly noted, the majority rewrote the language of Obamacare, and especially its constitutional premise. What the majority did here does not speak very well for SCOTUS making rational legal judgments, as opposed to results oriented “political” judgments. It is on par with the flawed reasoning by the majority in Kelo v. City of New London which turned the “taking” clause in the 5th Amendment on its head.

    Brown v. Board of Education is an entirely different matter. (And I grew up during the Civil Rights movement in the 50′s and 60′s, and supported it then and now, even though I would be characterized as a political conservative.) Brown v. Board of Education overturned another consititutionally flawed SCOTUS decision (Pleussy v. Ferguson) premised on “separate but equal” satisfying the 14th Amendment.

  7. EG -

    So what? It is still the law. So is Citizens United. So are many other decisions.

    My comparison to Brown was that it was soundly criticized by the Right for the SCt supposedly overstepping its authority just as the Right is criticizing this decision. The criticism is full of sound and fury signifying nothing.

    ACA is the law. Get used to it.

    Tifoso

  8. Gene,

    “While Obamacare and the Supreme Court decision have nothing to do with intellectual property….”

    Not true. There are few provisions within the ACA that deal, in some fashion, with patents and IP on biosimilars/therapeutics. The words “patent” and “patents” appear about 80+ times in the ACA.

  9. Tifoso,

    You missed my point: having SCOTUS decisions with these sorts of legally flawed does not earn respect from the public or from attorneys. Also, comparing my criticism of the Obamacare decision because it’s based flawed constitutional legal premise with the “racist” criticism of Brown v. Board of Education is not a very good analogy. If you want to compare my criticism to what happened in Citizens United, that’s fine, but Brown v. Board of Education is an entirely different matter.

    Also, the ACA may be the law now, but that doesn’t mean it will continue to be the law in the future. While the public likes certain portions of the ACA, the majority is not happy with the ACA as a whole. We’ll just have to wait and see what happens after the November election, right?

  10. Tifoso,

    Sorry, I forgot to insert “arguments” after “legally flawed.”

  11. BW-

    You are correct. I should have said something like… while my critique of Obamacare and the Supreme Court decision will have nothing to do with IP.”

    The Biotechnology Industry Organization did lobby hard to get some good provisions in the bill relative to biosimilars (at least if my recollection is correct).

    -Gene

  12. Tifoso-

    You say: “So, what else is new? No big deal?”

    I understand that there have always (or at least nearly always) been incentives built into the tax code. It just seems of a very different sort to me. If you do X you get a tax benefit is how these incentives have been structured. Now this says if you do not do X you have your tax increased. The difference is a carrot versus a hammer. I do think that is a fundamental shift, and not the type of power I would want any group of power-hungry politicians to be able to wield. Only Thor should be wielding a hammer!

    Sorry… couldn’t resist. I enjoyed the movie and the Avengers was great fun too. Not going to win any Oscar’s but fun. Need to find something to smile about these days.

    -Gene

  13. Gene -

    Congress has ways to make people or businesses conform conduct to some norm Congress sees as desirable. Congress can impose criminal or civil penalties. Congress can also grant tax benefits to those who do what Congress wishes. Those who do not do what Congress wishes pay higher taxes. Higher taxes are a form of civil penalty.

    BTW. Letting you in on a little secret. Thor is imaginary. LOL.

    Tifoso

  14. Gene,

    Obviously I knew that you knew about the BIO-lobbied provisions! (just thought I’d throw in my 2-cents for first-pass readers who may not be as familiar with your blog and expertise). Thanks for responding.

    Of those BIO Provisions, one includes an amendment to 35 USC 271(e)(2) adding a third subsection (C); a change which survived during passage of the America Invents Act almost two years later in 2011. A quick thought experiment: Had the dissenters in the ACA SCOTUS case gotten their way to strike down the law, my understanding is that but for the separate passage of the AIA, subsection (C) would have required deletion from 35 USC 271(e)(2). On the other hand even though subsetion (C) got through via the AIA, if the dissenting view that “all of the Act’s other provisions would not have been enacted without” inclusion of the individual mandate and Medicaid funding provisions had been the majority opinion, can an argument be made that it was only included in the AIA because it had been introduced in the prior patent act via the ACA, and at the time of the AIA’s passage, the ACA was still on the books?

  15. One thing that occurs to me, is that their decision to call it a tax would seem to be taxation without representation. I suppose you could say that elected officials selected the Justices, so they are a sort of secondhand representatives. To me though, that begs the real issue of not being able to deselect them like you can with your Senators or House Representatives by using your vote. Perhaps that is why they tend to have a somewhat sanctimonious attitude, even if they don’t know what they are doing.

    Taxation without representation was one of the main reasons why Americans revolted against British rule, unless I am mistaken. The Brits were taxing tea so heavily for instance, that it resulted in the Boston Tea Party, and why most Americans drink Coffee instead of Tea to this very day.

  16. I doubt anyone will even read this, but this comments section, and all the other ones out there like them, really make me laugh. The Supreme Court decided the taxing power question exactly in line with how anyone who has ever studied the constitution knows the taxing power operates, and yet half the country has totally flipped out and suddenly hates the Supreme Court.

    I mean, seriously? Have you even read the constitution? The taxing power is written in impossibly broad language, and to hear otherwise intelligent individuals totally turn their backs on any reasoned and historically consistent application of the law is utterly mind-boggling. This notion that somehow Congress’ power needs to be curbed is totally and utterly ridiculous.

    If Congress goes and passes some ridiculous tax, the answer isn’t to take away their power to levy taxes in direct violation of what is very clearly laid out in the Constitution as within their power. The answer is to elect people who will repeal the tax. That is the point of democracy, and to hear the right advocate for what would have been an incredible piece of judicial activism and go directly against the language of the constitution still sickens me, a month later.

  17. Gene,

    I thought you were kidding about the Govt imposing taxes on behavior. Sadly, you were prophetic.
    http://cnsnews.com/news/article/obamacare-penalty-could-make-health-insurance-too-expensive-smokers

  18. Craig-

    I don’t know whether to laugh or cry.

    I don’t think it is a stretch to say that many of President Obama’s supporters are lower income Americans, and many of them probably smoke. I wonder what they are going to think when they realize that health insurance will cost more for them.

    I don’t understand Obamacare, and probably no one else does either. It seems that some low income folks will qualify for free healthcare, and those who don’t qualify and don’t have it provided have to pay a penalty of some kind on their taxes. Are they then given healthcare after paying the penalty? What a mess!

    I understand the desire to have universal coverage. There is a much better way to do that though. As long as we want to have everyone with the same level of coverage that will spell doom I’m afraid.

    -Gene