Back in November of 2009, I wrote Obviously Non-obvious and Patentable Inventions Part I. I have for some time wanted to return to this and continue with Part II, which really is implied explicitly if you are going to call something Part I. In any event, Part I was a combination of a rant about KSR tied together with frustration that the NCAA and otherwise brilliant (or so they tell us) University President’s cannot figure out a way to concoct a Division I (I refuse to call it Football Bowl Subdivision) playoff for College Football. Obviously, a Division I College Football playoff must not be obvious because it if were you would think a bunch of bright people in ivory towers would have figured out how to make it work, particularly given that there would be more money to be made off the labor of unpaid (except perhaps for USC players) amateur college athletes. With there being college playoffs for every other sport, including in other divisions of college football, the conclusion must be that a Division I playoff must not be “common sense” and, therefore, must be non-obvious. Picking up on this theme and focusing on things that at first glance seem incredibly obvious but must not be at all obvious given that those who are exceptionally smart can’t figure them out, I thought with tax season right around the corner it might be worthwhile to explore method of stimulating the economy by cutting taxes.
First, lets rehash a little bit of the law of obviousness as handed down from on high by those at the Supreme Court. You know, the ones who obviously know what is “common sense,” at least more so than those who understand that science is unpredictable and the art of inventing is anything but predictable, and what seems to be “common sense” is frequently misplaced naivety. Thanks to the US Supreme Court’s decision in KSR v. Teleflex that which is “common sense” is obvious. There are no hard and fast rules for what is obvious, rather the Supreme Court thought it wise to leave it as a case by case determination, so the 6,000 or so patent examiners are left to figure it out for themselves on a daily basis, applying common sense as they interpret it. Now those in the audience who are snickering need to STOP right now. We are really lucky that there are only 6,000 or so different interpretations of what is common sense, down from the infinite number there could be. Please also ignore the reality that with 6,000 different decision makers, each of whom have no objective criteria to follow, cannot hope to possibly provide uniform decisions across the examining corps. And for goodness sake, don’t even mention or notice that this unequal treatment might have Constitutional implications. That stuff about similarly situated individuals really was more aspirational anyway.
OK, now with the table set, lets explore the tax code. Well, OK, not really the tax code because that would take forever given the tens of thousands of pages and ultra small type. Lets focus on the part where the government raises taxes or perhaps the part where they threaten to raise taxes moving forward in order to pay for extravagant spending, you know the kind of spending that one engages in with borrowed money. I mean really, if any individual were to borrow, spend, borrow more, make less, spend, borrow more and so on, their credit card would be cut up in a New York minute, which for those unfamiliar with NY is far less than 60 seconds. Of course, when you can print money, tax and simply write IOUs to the Chinese, fiscal restraint is not something that comes naturally.
The objection I have personally to the borrow-spend-tax-spend-borrow-some-more philosophy is that it doesn’t work, at least if at the end of the day you want to be able to function without having enormous amounts of debt to pay off and interest payments that are so large you no longer have any hope of paying off the principal. I realize many who are reading are tempted to say that this is all obvious and hardly something that is new, but how can it be? The best and brightest minds in government have decided that taxing more, borrowing more and spending more will be a successful strategy for turning around the economy. So if the best and brightest minds think prolonged spending of more than you bring in and constantly borrowing to fuel the spending habit is acceptable and prudent fiscal policy, who is the Supreme Court to say that my invention is common sense?
So what is my invention? Well, I like to think of it as rather sophisticated, eloquent and perhaps even a little revolutionary. Maybe not revolutionary on the scale of Einstein’s General Theory of Relativity, but revolutionary in the same way that the forward pass forever changed the game of football. Yes, a game changing revolutionary invention is what I have. The best part about it is that at one point in time it would have been widely viewed as true, simple, correct and the only sane thing to do. Today, however, it is an earth shattering innovation, at least insofar as the Supreme Court defines innovations. I mean, if it isn’t common sense it has to be patentable, right?
What I propose is a method of stabilizing the economy and spurring job creation comprising an across the board TAX CUT for both individuals and businesses. Now I am fully well aware that this “invention” has certain prior art, such as perhaps the following speech by President John F. Kennedy, which is well worth the 2 minute investment in watching.
I am also well aware of other prior art, such as perhaps the speech below by President Ronald Reagan, which is well worth the 2 minutes and 41 seconds. In this prior art speech Reagan, at the end, encourages young people to start businesses and join the Age of the Entrepreneur. He also pays homage to Justice Scalia by a “gobbledegook” reference. Of course, Scalia’s reference was to the patents being gobeledegook, while Reagan’s statement relates to the tax code.
I am sure there are other pieces of prior art, even some pieces of enabling prior art, or come to think of it wildly successful and unimaginably enabling prior art, but I am going to hang my hopes on secondary considerations. Secondary considerations, sometimes called objective indicia of non-obviousness, look to see if there are countervailing reasons why an otherwise obvious invention might really not honestly be obvious after all. One of the best is a long felt and unresolved need. Since our economy is desperately in need of saving and the troubles facing families and business seem as if they have been going on for an extremely long time, I think there may just be a long felt and unresolved need. And I am here to help!
Proponents of tax increases point out that they merely want to do away with tax decreases, so it really isn’t a tax increase, although your taxes will go up. They also claim that the rates would merely approach the tax rates during the Clinton Administration. Of course, there is a substantial difference between raising taxes when the economy is booming and when the economy is foundering. I mean if we are going to be perfectly honest there is a big difference between taking a higher percentage when you have a lot more than taking a higher percentage when you have a lot less. I know politicians are not all that good at math, but in the “taking more when you have less” category what results is less left over than in the “taking more when you have more” category. Unfortunately, you really cannot mention that in “polite” company without being offensive I suppose.
As far as I am concerned, our leaders ought to be calling plays from a playbook consisting of plays that have worked. I see no advantage calling plays from a a playbook comprised of plays that have never worked, hoping this time will be different. Isn’t that what Einstein called the definition of insanity? The fact that the plays have never worked does not necessarily mean they are “over due” for success. Perhaps the plays that have never worked are in the “crappy plays book” because they are, well crappy.
So, this being said, I am optimistic that a patent covering a method of stabilizing and growing the economy comprising tax cutting has at least a chance, maybe even a snowball’s chance in DC or chances similar to the odds that the Saints will eventually win a Super Bowl! Yes, pigs can sometimes fly, as it turns out, and if you listen to our leaders in DC cutting taxes is anything but obvious.