Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?
The Supreme Court Should Invalidate Software Patents
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Re: The Supreme Court Should Invalidate Software Patents
#12Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.
I'm not so sure this isn't a constitutional question.
In Article I, section 8, the U.S. Constitution:
Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Note that Congress is only given this power in order to promote the progress of science and useful arts. If one can effectively argue that software patents have the opposite effect, and in fact hinder the progress of science and useful arts - and I think such an argument can be made - then it seems reasonable that the courts should strike down software patents as unconstitutional.
Re: The Supreme Court Should Invalidate Software Patents
#13That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously. - Benjamin Franklin
Re: The Supreme Court Should Invalidate Software Patents
#14A simpler solution would involve giving the defendant of patent litigation the option of making their suit winner takes all.(All of the court fees within reason are paid by the loser) This would keep software patents but reduce frivolous lawsuits.
Re: The Supreme Court Should Invalidate Software Patents
#15The SCOTUS ruled against the patentability of an algorithm which codified a certain hedging strategy in the Bilski case in 2010. This was believed to reinforce the invalidity of many software patents.
Re: The Supreme Court Should Invalidate Software Patents
#16Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.
They're not making a Constitutional argument here, but suggesting that the courts fix some decades-old precedent that went astray starting with Diamond v. Diehr.
That's well within the Court's powers. They created the mess, so it's not unreasonable for them to fix it. It's not as though Congress passed a law allowing software patents or something.
Re: The Supreme Court Should Invalidate Software Patents
#17It'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.
I'll preempt the constitutional argument by saying that hasn't been made yet. You underestimate how strong such an argument has to be to succeed. What SCOTUS could clarify is Diamond v. Diehr. That still wouldn't be the end of our patent problems though.
Re: The Supreme Court Should Invalidate Software Patents
#18Software patents are a policy issue, not a constitutional question. This needs to get fixed in Congress.
Congress would appear incapable of any policy to the detriment of the few large software companies that benefit from the existence of software patents. This seems more of a domain for the FTC and Justice Department, due to the implications for anti-competitive behavior facilitated by these types of patents.
Re: The Supreme Court Should Invalidate Software Patents
#19That would be nice, but I think that when there are big companies and billions of dollars at stake, things aren't so easy.
That's the whole point of the article: the SCOTUS members don't have to be re-elected and are not going to be lobbyists after leaving the bench - they actually can do such a thing on principle, that's their whole role. Please read the article.
Re: The Supreme Court Should Invalidate Software Patents
#20Of all the supreme court decisions, I wouldn't expect this to be drawn mostly on partisan lines. Yet the author makes a good case that the liberal judges would invalidate the patents and conservative judges (with Scalia an open question) would not. Why are conservative judges more likely to support software patents?
They'll tend to see them as protecting the interests of business, which has, for whatever reason, become part and parcel of supporting the "free market" in contemporary American political culture.