One of the common themes in discussions of yesterday's post is well represented by this comment:
It's not up to Justice Scalia to do the right thing. It's up to Congress. As Scalia is so fond of saying, garbage law in, garbage decision out. Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us.
This argument has a lot of common-sense appeal, but it misunderstands how patent law works. Here is what Congress has said may be patented:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
There's intuitive appeal to the idea that the courts should stick to interpreting the law and leave policy judgments to Congress. But none of the "conditions and requirements" in the patent statute say that software should or shouldn't be patentable. Rather, courts have to use their judgment about whether software is a "process, machine, manufacture, or composition of matter." This kind of deliberately abstract language clearly invites courts to fill in the details itself. And it's entirely appropriate for the courts to think about the likely policy implications as they decide how best to interpret this language.
Of course Congress can, at any time, amend the patent statute to explicitly expand or limit the boundaries of what can be patented. And if they did, it would be binding on the courts. When the Supreme Court first invalidated a software patent in 1972, it specifically invited Congress to clarify whether it intended software to be patentable. But Congress didn't change the statute.
What did happen is that for more than two decades, the United States Court of Appeals for the Federal Circuit (which sits below the Supreme Court in the patent appeals process) unilaterally expanded the range of stuff that could be patented. And for the most part the Supreme Court chose not to review those decisions. Hence, we're left in a situation where the Supreme Court's last holding, from 30 years ago, is wildly out of step with the latest lower court rulings.
There's a plausible argument that the Supreme Court has waited so long to reverse the Federal Circuit's decisions that those decisions should now be treated as binding precedent despite their conflict with the high court's own precedents. Conversely there's an argument that even very old Supreme Court precedents trump lower court decisions. The Supreme Court has to make an essentially arbitrary choice between these principles. I think it's entirely appropriate for the high court to take into account the fact that one of the options would lead to sound public policy while the other would continue a rent-seeking bonanza for patent lawyers.
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