Naked Emperors: A Supreme Court Patent Tale

The United States Supreme Court is the final arbiter on the meaning of laws in the United States. Unfortunately, the Supreme Court is also cloistered and insular. There are only Ivy League graduates on the Supreme Court, which guarantees very little diversity of thought. Sure, there is great divergence between the conservative Justices and the liberal Justices, but in terms of every day experiences they all went to the same places, they ate the same places, they drank the same drinks, were taught by the same people and now they lived the same lives for the vast majority of their professional careers.

Tucked far away from reality the Supreme Court acts as if they know everything about everything, which is just ridiculous. In a world becoming more complex and specialized by the day it is utter fantasy to believe that a homogenous group of senior citizens from Ivy League schools who have no scientific training possesses the breadth and depth of knowledge to wisely pontificate on any and every subject, particularly those relating to cutting edge technology.

The idea that the Supreme Court is at all capable of understanding — let alone deciding — issues of a technical nature is ridiculous. Yet their individual and collective lack of knowledge hasn’t prevented them from reaching misguided decisions in a variety of cases. Like an Emperor without any clothes the Supreme Court seems blissfully ignorant of their own ignorance. Indeed, you would have to go out of your way to find nine less qualified people to decide issues of a technological nature.

Supreme Court misunderstandings of science and technology are legendary, but the one that pretty much captures the fullest extent of their collective lack of understanding is when all nine Justices agreed in AMP V. Myriad that the patent claims at issue defined a man-made isolated gene, but still somehow were able to conclude that the claims were patent ineligible because despite being made by man a patent on the claims would have violated the law of nature doctrine. So at the same time the claims cover a man made molecule not found in nature the entire Supreme Court simultaneously ruled that the claims were to something that is naturally occurring.

Justice Thomas wrote: “we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated.” Apparently not realizing the logical incongruity Thomas would later explain that Myriads claims could not be saved “by the fact that isolating DNA from the human genome severs chemical bonds and thereby creates a nonnaturally occurring molecule.” Thus, the isolated DNA claims somehow simultaneously cover naturally occurring DNA even though isolating DNA “creates a nonnaturally occurring molecule.”

The critical question left unanswered by the Supreme Court was how something could simultaneously be man-made and naturally occurring at the same time. In fairness, how could such an absurd statement be explained?

Indeed, the Supreme Court’s decision in Myriad is the legal equivalent of Schrödinger’s cat, which is a thought experiment devised by Austrian physicist Erwin Schrödinger to explain a problem with the Copenhagen interpretation of quantum mechanics. Schrödinger posits that if you put a cat in a box there is no way to know whether the cat is alive or dead without observing the cat, which seems obvious enough. Schrödinger then takes a leap, saying that since you cannot know whether the cat is alive or dead without observing the animal, the cat can be simultaneously thought of as both alive and dead. Schrödinger’s cat was conceived to draw attention to the incongruous nature of the Copenhagen interpretation of quantum mechanics since a cat obviously cannot both be simultaneously dead and alive. If Schrödinger were alive today perhaps his thought experiment would have been conceived in response to the Supreme Court’s decision in Myriad given the logical and scientific impossibility that something is simultaneously both nonnaturally occurring and naturally occurring.

I wonder if the Supreme Court is even familiar with Schrödinger? I wonder if they would understand how their Myriad decision could be likened to the Copenhagen interpretation of quantum mechanics? I wonder if they even care?

I have also long wondered about the propriety of refusing to define obscenity. Justice Potter Stewart famously refused to define obscenity explaining: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description… But I know it when I see it.” See Jacobellis v. Ohio (Stewart concurring opinion). This “I know it when I see it” standard has been a part of Supreme Court lore ever since it was uttered in 1964. It has also been the best working definition of obscenity. Ultimately, what is obscene is in the eye of the beholder, as evidenced by the fact that obscenity laws vary greatly from State to State. But possession of obscene material is a crime. It is troubling that there could be so many subjective definitions of obscenity and one widely cited, yet vague definition that at best provides an indefinite and ambiguous understanding. We laugh about the carelessness displayed by the Supreme Court when it comes to defining obscenity, but those who make, possess, sell or import obscene materials are not the most sympathetic of crowds. The lack of a sympathetic character means we tolerate what should be a constitutionally infirm generalized concept that could lead to the deprivation of liberty.

What does obscenity have to do with patents? A lot. There are some who believe that the “I know it when I see it” standard is really the subjective test for obviousness. More recently, however, the “I know it when we see it” approach has been expanded to patent eligibility.

The Supreme Court continually expands judicially created exceptions to patentability under the guise of the abstract idea doctrine. Let’s leave for today the fact that the statute the Supreme Court is interpreting, 35 U.S.C. 101, does not provide any authority for the creation of a class of judicially created exceptions to patent eligibility. That should matter, but it seems the Supreme Court’s thirst for power, authority and relevance is not tethered to any particular statutory language.

The very justification for the patent system is the dissemination of information so society benefits and future innovators can stand on the shoulders of those who have come before. Ironically, software enables this fundamental benefit of any patent system by facilitating the widespread, immediate dissemination of information, yet in the mind of many Jurists software itself is not patent eligible. Still, software is an enormous part of the American economic engine and at the foundation of American competitiveness. Google, IBM, Microsoft, Apple, Qualcomm and so many other giant U.S. corporations are leading the software economy, yet the Supreme Court seems perfectly comfortable with throwing the very foundation of the industry into turmoil. The inability to own the rights to software innovations will mean that the research, development and investment of these and other companies are worth less, if not worthless.

Given that we live in an age of software innovation, where 50% or more of all innovation is in one way, shape or form related to software, why are many Article III and Administrative Judges declaring that software is not patent eligible? Perhaps a more important question is why is Congress letting these Judges get away with what they are doing? There is no legislative support for the existence of any so-called judicial exceptions to patent eligibility, yet Article III and Administrative Judges are striking down patent after patent in this economically vital area.

The biggest piece of the problem in the ongoing debate about the patent eligibility of software is the Supreme Court has never defined the term “abstract idea.” Nevertheless, despite a failure to define this critical term, the Court has found that certain patent claims violate the undefined “abstract idea doctrine.” How there can be a doctrine without a definition is particularly curious. The term “doctrine” is defined as ” (1) a particular principle, position, or policy taught or advocated… (2) something that is taught; teachings collectively… (3) a body or system of teachings relating to a particular subject…” Call me crazy, but it seems impossible from a definitional standpoint to have a doctrine without a definition.

It defies logic to hold people accountable based on a standard that even those who judge cannot, or will not, define. Unfortunately, it seems that a lack of logic is no impediment to achieving a myopic decision. The Supreme Court won’t tell you why something is patent ineligible in a way that would stand up to even modest logical scrutiny, but they sure seem to know it when they see it.

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Author izakowski