Obviously Non-Obvious: Pay Congress from Surplus

Over the last several days I was in Northwest Ohio, where I spoke at the University of Toledo College of Law and at Ohio Northern University College of Law; discussing with patent law students the patent bar exam, the PLI patent bar review course, resumes that work and careers in patent law.  During the 2001/2002 academic year I was a Visiting Professor at UT College of Law, so I still have a number of friends up there on the faculty, so a good time was had by all.  But one of the conversations I had with my friend John Barrett, Associate Professor of Law at UT College of Law, got my wheels spinning and reminding me that it has been a while since I wrote about obviously unpatentable but yet patentable inventions (see College Football Playoff System and Method to Spur the Economy by Cutting Taxes).  John and I frequently talk politics, and not sharing identical politics our conversations are always lively and entertaining.  But one thing we are definitely in agreement with is that the spending in Washington DC needs to stop, and John proposed what I believe is a brilliant solution!

John is a business attorney and he teaches all kinds of business law classes, so he is always thinking about matters from a business perspective.  As our conversation turned to the financial problems the United States government is facing John said in a straight forward way: “I know what would solve the spending problem once and for all.  Congress should be paid out of the surplus left at the end of the year, just like a small business.  If nothing is left then they don’t get paid.  That would fix DC.”  What a brilliant idea, and one that obviously is non-obvious because the best and brightest minds in Washington, DC would have certainly come up with such a simplistic method to prevent Congress from further destroying America.

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As our conversation progressed I probed further, because the idea that Congress wouldn’t get paid is really an intriguing one if you ask me.  After all, if we were to pay for performance those in DC would be working for free or paying us for the privilege of holding down a job.  Nevertheless, what would stop Congress from simply borrowing money from the Chinese or Japanese to cook the books and show a surplus when one really doesn’t exist.  To this John responded in his typical matter-of-fact manner: “Debt doesn’t count.  Revenue must exceed expenses to be paid.”  He then went on to say: “In order for Congress to get paid there needs to be cash in the til, and Congress should be personally liable for any excess distributions.”

What a wonderful idea!  Government running just like a small business would run.  Everyone who owns a business knows that the owners are the last ones to get paid, and after everyone else is paid if there is anything left over that is what remains for you.  So treating Congress in the same manner seems perfectly brilliant, and obviously patentable and non-obvious because it seems to me that most of those in Congress have forgotten what it is like to live in a world where they laws they pass affect them.  So it is about time that responsible government be put back in place and what better way than to start with sound fiscally responsible policies.

This idea of revenue in exceeding revenue out is really not one that is in and of itself patentable though.  Families and small businesses live with that reality every day of every week of every month of every year.  So there will likely need to be some kind of a hook in whatever claims we write to make sure that we distinguish over the common sense prior art established by hard-working individuals who are the backbone of this Nation and who know that you simply cannot continue to spend more than you bring in.  As our President is fond of saying — when you are in a hole you need to put down the shovel.  That is common sense for individuals, families and small businesses, but seemingly incomprehensible when it comes to government — and that will be the patentability hook no doubt.

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Here is an example of a claim that would read on the prior art:

1. A fiscally responsible method of not going bankrupt comprising:

(a) taking in a certain sum of money over a predetermined time frame; and

(b) spending less than said certain sum of money over said predetermined time frame.

To explain, this would clearly be within the prior art because fiscally responsible individuals do not spend more money than the bring in, so there will easily be examples of this in practice for far more than 12 months, thus this claim would not be patentable under 102(b).  But what if we change the claim slightly to read:

1. A fiscally responsible method for a government to not go bankrupt comprising:

(a) taking in a certain sum of money over a predetermined time frame; and

(b) spending less than said certain sum of money over said predetermined time frame.

First, we would have to argue that the preamble term “a government” has meaning in order to distinguish the claim over the prior art, which is certainly easy enough to do during the prosecution of the application, and what Judge Dyk would rather have the preamble rule be anyway.  But the insertion of the term “a government” is still not likely to overcome the prior art since, for example, US State governments must have balanced budgets at the end of the year.  Now I know that for some States the balancing is only as a result of a handout, or “stimulus” provided by the federal government, but I still have my doubts this claim would be patentable.

What if we further modified the claim to read:

1. A fiscally responsible method for the United States government to not go bankrupt comprising:

(a) Congress taking in a certain sum of money over a predetermined time frame; and

(b) Congress spending less than said certain sum of money over said predetermined time frame.

Now I think we are on to something!  This has to distinguish over the prior art because the United States Congress seems constitutionally incapable of spending less money than they take in, so there would seem to be no prior art available under 35 USC 102.  The question would then become whether the claim is obvious, and the test of obviousness post KSR v. Teleflex is one of common sense.  You may be tempted to say that is easy, Congress has no common sense, but that is not exactly the type of common sense test that the Supreme Court had in mind.  The question is whether one of skill in the art would see the claimed invention as being common sense.

Even if you are tempted to think that one of skill in the art, who is likely a legislator, would think it is common sense to spend less money than is taken in, allow me to remind you that even if you do think it is common sense there are those secondary considerations to consider.  Secondary considerations are a reality check on obviousness.  Basically they are there to check to make sure it is intellectually honest to claim something is obvious.  So one of the best secondary considerations to have on your side as an applicant is a long felt yet unresolved need.  In other words, if the problem has existed for a very long time and no solution was forthcoming how could anyone claim that the solution is obvious in any intellectually honest way?

Well, if you ask me one of skill in the art, a hypothetical legislator, would hardly even think about spending less than is taken in.  Perhaps Congressman Paul Ryan and few spending hawks might, I’ll give you that.  But my assessment is that the long felt unresolved need of a fiscally responsible Congress would render the method invention of Professor John Barrett patentable over the prior art.