All In! Doubling Down on Erroneous Attacks on the Federal Circuit

On Sunday, September 30, 2012, Timothy Lee of Ars Technica wrote a terribly researched and demonstrably erroneous article attacking the Federal Circuit titled How a rogue appeals court wrecked the patent system. The article is a cheap shot, factually inaccurate and just plain embarrassing.  Lee concludes the Federal Circuit is at the heart of all problems in the patent system, which is, itself, simply not true.  Of course, conclusions are not evidence and if he could have backed up what he was saying with any kind of factual, true information then it would have been a matter of opinion.   Instead, he was wrong about pretty much everything he wrote.

I challenged Lee’s article on Wednesday, October 3, 2012, in an article titled Lies, Damn Lies and Media Hatred of Patents (and the CAFC). This prompted Lee to come out swinging again, this time on Forbes.com in an article titled The Federal Circuit, Not the Supreme Court, Legalized Software Patents. Instead of apologizing like he should have done for writing about something he clearly doesn’t understand AND for getting it miserably wrong, Lee doubled down. Well — sort of.

Lee did double down with his absurd and provably incorrect assertions regarding the patentability of software patents, but he also more or less sheepishly admitted that his reading of the relevant cases is not one that is widely accepted as correct by anyone other than himself. He wrote: “To be clear, plenty of people disagree with me about how Diehr should be interpreted.”

I finally agree with Lee about something.  Plenty of people do disagree with his interpretations. Those plenty of people who disagree with Lee do so for a very simple reason. Lee is wrong and it can be easily proved if you just read the relevant cases.

Proving Lee’s Software Assertions to be Wrong

Almost a decade after its decision in Gottschalk v. Benson, the Supreme Court in Diamond v. Diehr first recognized that a computer program may deserve patent protection. How can I say this with such authority even though it is in direct contradiction to what Lee has written? Because the Supreme Court explained that the issue they were deciding in Diehr was whether a process for curing synthetic rubber that incorporated a programmed digital computer is patentable subject matter.”  The Supreme Court set the table as follows:

We granted certiorari to determine whether a process for curing synthetic rubber which includes in several of its steps the use of a mathematical formula and a programmed digital computer is patentable subject matter under 35 U.S.C. 101.

This quote comes directly from the first paragraph of the Supreme Court’s decision, so it is abundantly clear that the decision reached by the Court addressed the question of patentability of a process that utilizes “a programmed digital computer.” In fact, it was uncontroverted that the patent claims in question “defined and sought protection of a computer program for operating a rubber-molding press.”  So when the Supreme Court ultimately determined that the claimed invention in question was patentable that necessarily meant that a process that incorporates a programmed digital computer was patentable.  Thus, the Supreme Court of the United States ruled in 1981 that a computer implemented processes (i.e., software) can be patented.

In finding this software patentable, the Supreme Court explained:

[A] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program or digital computer. . . . [A] process is not unpatentable simply because it contains a law of nature or a mathematical algorithm. It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. As Justice Stone explained four decades ago: “While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.

. . .

[The equation used in the claimed method] is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is at the very least not barred at the threshold by Section 101.

So Mr. Lee is simply wrong when he asserts that it was the Federal Circuit and not the Supreme Court that initially determined that software could be patented.  The Supreme Court authorized the patenting of software, and used Diehr as the means for explaining that not all computer implemented processes are unpatentable.

By Lee’s own admission it was not until 1989 that the Federal Circuit found software patentable. That is some 8 years AFTER the Supreme Court’s decision in Diehr.  So how could he assert that the Federal Circuit decision 8 years later actually came first?  He simply ignores what Diehr says and instead claims that Diehr can’t mean what it unequivocally states because the computer software industry didn’t start to take notice and get upset until the 1989 Federal Circuit ruling.  Lee actually offers this as proof:

I think one indication that my claim was basically right is the way the software industry reacted, or more precisely didn’t react, to the 1981 Diehr ruling. The legalization of software patents produced a backlash in the software industry. If the impetus for software patents came from the Supreme Court, we should have expected that backlash to start in the early 1980s. Instead, opposition started cropping up in the 1990s, shortly after the Federal Circuit decided a case called In Re Iwahashi in November 1989.

So, in other words, just completely ignore the issue presented as defined by the Supreme Court in Diehr, as well as the claims specifically at issue, the Patent Examiner’s determination and the ultimate holding of the Supreme Court.  Diehr couldn’t possibly mean what it actually says because the software industry didn’t notice it.  Talk about the most illogical, ridiculous, self-absorbed rationale you will ever hear.  It couldn’t have happened because the software industry didn’t notice and get upset.  The fact that such an asinine argument could even be thought up is a true testament to Lee’s aversion to reality.

Following Supreme Court Guidance is Hardly “Rogue”

It is quite clear from any fair and accurate reading of Diehr that the Supreme Court unequivocally stated this: The mere fact that an invention incoporates a computer program or digital computer does not make it unpatentable.  Said in the converse — an invention that incorporates a computer program or digital computer may be patentable.  Consequently, it is clear for all objective observers to see that the Diehr decision opened the door for the possibility that some computer programs were entitled to patent protection.

This then required the Federal Circuit to find patent claims on at least some computer programs to be patentable.  Thus, started the Federal Circuit’s attempts to define under what circumstances an invention that incorporates a computer program or digital computer is patentable. So not only is Lee incorrect to say that the Federal Circuit is a rogue court, but what Lee uses as his proof that they are a rogue court is conclusively demonstrative of exactly the opposite. The Federal Circuit was doing exactly what the Supreme Court demanded.

Yet Another Reason Lee is Incorrect

Diehr aside, Lee is incorrect for yet another reason.  In his Forbes.com article, for reasons that are unclear, he chose not to address my second rationale for why the Supreme Court has authorized software patents.

In 2010, the United States Supreme Court AGAIN determined that software could be patented. This time in the much anticipated case of Bilski v. Kappos.

Justice Kennedy wrote the majority opinion in Bilski.  Unfortunately, the part that dealt with software was not joined by Justice Scalia, so only 4 Justices signed on to this part of the opinion, which requires a two-step analysis. In the “software section” of the opinion Kennedy characterized the holding in the Diehr case as follows: “a procedure for molding rubber that included a computer program is within patentable subject matter.”  Kennedy also specifically stated that computer programs are not always unpatentable, see slip. op. at pg. 8, which logically necessarily means that some software is patentable.  Therefore, Justices Kennedy, Thomas, Alito and Roberts all agree that software can be patented.

But what about the other Justices?  This brings us to footnote 40 of the Stevens dissent.  Justice Stevens was joined by Justices Breyer, Ginsberg and Sotomayor in his dissent.  The Stevens footnote 40 recognized two important things.  First, the State Street bank case dealt with the patentability of computer software.  Second, the ultimate outcome in State Street was correct.  Footnote 40 explains:

Judge Rich authored the State Street opinion that some have understood to make business methods patentable. But State Street dealt with whether a piece of software could be patented and addressed only claims directed at machines, not processes. His opinion may therefore be better understood merely as holding that an otherwise patentable process is not unpatentable simply because it is directed toward the conduct of doing business—an issue the Court has no occasion to address today.

Thus, the State Street patent claims,which unequivocally and directly related to a computer implemented process (i.e., software), were patentable in the views of Justices Stevens, Breyer, Ginsberg and Sotomayor despite being directed to a method of doing business.  Thus, these four Supreme Court Justices likewise agree that at least some software is patentable.

What this means is that 8 out of 9 Justices of the United States Supreme Court agree that at least some software is patentable.

So how is it possible that Lee could so miserably and provably misrepresent the patentability of software?  How could it be that he misreads Diehr and simply ignores Bilski?  What is a better question is this: Why do Forbes.com and Ars Technica give him space to spew his easily disproved brand of nonsense?

If Lee has any integrity he will issue a public apology to the Federal Circuit and issue a retraction.  If Lee doesn’t come to his senses and do the right thing in the face of overwhelming evidence that he is wrong then Forbes.com and Ars Technica should step in and do what needs to be done.

Did I Accuse Lee of Lying?

Finally, allow me to first take issue with yet another mischaracterization in Lee’s Forbes.com article.  He wrote: “patent attorney Gene Quinn outright accuses me of lying in his response to my recent piece…”

I suppose if he only read the title to my article — Lies, Damn Lies and Media Hatred of Patents (and the CAFC) — and not the article as a whole one come to the conclusion that I accused Lee of being a liar.  There were, however, other specific mentions of media bias in the article.  Be that as it may, if you read the article in its entirety it would be crystal clear that I offered a variety of explanations regarding how Lee could write something that was so embarrassingly wrong.  I suggested that his provably erroneous statements could be  explained as a result of : (1) being completely uninformed (i.e., “ignorant”); (2) being stupid; (3) ignoring the truth in favor of facts that support his predetermined narrative; or (4) having an agenda.

It seems rather obvious that Lee is not at all versed in the law and is ill-equipped to write a story about a patent law issue.  His misreading of Diehr is breathtaking, which is Exhibit 1 to demonstrate his unfamiliarity with the topic.  Exhibit 2 is his failure to even address Bilski.  But these are just two pieces of evidence that prove that patent law topics are over his head.  This doesn’t mean Lee is stupid, it just means that he is writing about something he doesn’t comprehend.  Whether you think that is stupid or not is for you to decide.  I suspect it has more to do with an extreme (and rather unwarranted) case of hubris.

I’m sure that Lee and his supporters will take issue with my observation that he has unjustified self confidence, but the alternative is that he is stupid (which I don’t believe), or that he has some kind of agenda that caused him to simply ignore facts in favor of his predetermined narrative.  He clearly has little regard for the Federal Circuit and the patent system, so it seems to me that the most likely explanation for his embarrassingly incorrect views are the result of an agenda that lead him to a predetermined narrative — facts and truth be damned.  That doesn’t mean he lied, it just means he was not objective and was horribly incorrect.  Perhaps incorrect with reckless disregard to the truth, evidence of which is that he admits that plenty of people disagree with him about Diehr, a truth that was conveniently omitted from his Ars Technica article.

It would seem that rather than apologize or retract his horribly researched and reasoned article it is just easier for Lee to attack me for pointing out that the emperor isn’t wearing any clothes.  I get it.  I’m a big boy and it doesn’t bother me.  I rather enjoy being the one to conclusively prove that Lee has been wrong at every turn.  I find it rather humorous when people like Lee need to resort to these types of tactics.