Friday, June 26, 2015

Gene Quinn On the Less and Less Predictable Supreme Court

Putting aside the two highly contentious ones, there were some really odd Supreme Court decisions this week, which is part of a broader trend that Gene Quinn describes in his piece:

The Supreme Court doing whatever they want without repercussions or consequences is not new. Indeed, those who oppose Obamacare and who find the Supreme Court ruling in King v. Burwell impossible to justify are just now having to come to terms with what those in the patent industry have known for many years. The Supreme Court does not let the statute stand in the way of reaching the decision they think is best. Neither does the Supreme Court allow precedent, even their own precedent, influence their decision making process. That is, of course, unless they choose to ignore substantive arguments and claim for some reason that in a particular case their hands are tied because of stare decisis, which they actually recently did in Kimble v. Marvel Entertainment. Given this Court’s track record it is practically comical to see them cite stare decisis.

In Alice v. CLS Bank, the Supreme Court issued another intellectually challenged decision. In a unanimous decision authored by Justice Thomas the Supreme Court held that because the claims are drawn to a patent-ineligible abstract idea, they are not eligible for a patent under Section 101. The problem, however, is that the Supreme Court has never defined the meaning of the term “abstract idea.” Furthermore, not once in the decision did the Supreme Court even use the word “software,” although the patent in question was undeniably a software patent and the Court’s decision has been used at the USPTO, PTAB, in Federal District Courts and at the Federal Circuit to either deny issuance of software patents or declare previously issued software patent claims invalid because the subject matter is patent ineligible. Everyone in the industry knew this decision, one way or another, would have major impact on software patents and the Supreme Court didn’t even use the term once? Are they that hopelessly out of touch?

7 comments:

Unknown said...

Quinn is a shill and that article is blatantly one-sided and dishonest. There is a legal backlash against "innovators" because many of them manifestly aren't innovators-- they're patent trolls, software patents applicants, they want to patent naturally-occurring DNA, etc. The hostility toward "innovators" is really a hostility toward parasitic rent-extractors.

Yeah, it sucks that the Court is arbitrary and ideologically motivated, but Quinn doesn't really care about that-- he's just using that as a cloak to argue for a legal regime that would be even worse.

High Plateau Drifter said...

On the contrary I would argue that the Court is highly predictable for the simple reason that a systematic cultural bias - an overarching desire to impose their vision of group human equality where no such equality exists - consistently drives their decisions. The Supremes held that lack of any evidence of discrimination is no bar to their ability to order a state agency to halt the process of qualifying properties for section 8 rent subsidies primarily in minority areas. The Supremes are uniquely empowered to legislate from the bench without any fear of blowback when their legislation wreaks havoc and fails, as whites flee, property values fall, and the tax base of the city implodes once section 8 housing spreads throughout the city. Somehow, concentrating section 8 housing in neighborhoods with the greatest economic need and demand for such housing creates, in the minds eye of the Supremes, a "disparate impact" which is sufficient provocation for their eminences to force the non minority areas of the city to become ennobled by sharing the negative impacts of section 8 housing. The prejudice behind the five votes in favor of this decision is that every economic, educational and behavioral failure of poor African Americans is somehow due to lack of sufficient contact with European Americans. Of course any working class European American who grew up in one of the 10 most dangerous cities in the U.S. will likely ascribe a much darker and more directly hostile motive to these 5 miscreants on the bench.

High Plateau Drifter said...

Further to the point, I would argue that the decision to classify marriage as a union between a man and a woman as a violation of the civil rights of homosexuals and lesbians is just another clear case of Blue State imperialism over Red State cultural values. It is entirely predictable, particularly when the Imperialist five fear that a Republican might win the presidency next year and pack the court with right leaning judges. The Supreme Court has always been a political institution. Its role for the past 60 years has always been to interpret the constitution as commanding outcomes that every right thinking liberal would wish for but which elected representatives refuse to enact through legislation for fear of disapproval by benighted voters. The massive social changes of the past 60 years have been driven by the anti democratic branch of our federal government. Of course increasing economic prosperity and growth has been the driver of grudging acceptance of these changes for the simple reason that increasing prosperity and growth provided most with the economic means of escaping the negative consequences of the Supreme Court decisions and, of course, the fact that these Supreme Court decisions were in large part responsible for "The Big Sort" as described by Bill Bishop in his recent book. To increase your odds of survival, always leave your enemy an avenue of escape.

CP said...

I'm not sure you guys read the article, much less the messed up non-political opinions that he's talking about.

Putting aside the fact that the Supreme Court is used as a super-legislature to advance progressive social changes that are undesired by a majority of the population, they are starting to write opinions that deliver an outcome to a favored party without integrating with or contributing to a coherent body of case law.

That's the function of courts in China.

Indiana State Police Pension Trust v. Chrysler LLC
"This is the first time in the history of American bankruptcy law when secured creditors received less than unsecured creditors." Mourdock also stated, "The Chrysler deal is a clear violation of the Fifth Amendment to the Constitution and more than 150 years of bankruptcy law." Mourdock also stated that under the Fifth Amendment, private property cannot "be taken without due process of law. That clearly has not happened in this case. There has been no process of law consistent with long-standing precedent whatsoever."[25]

On May 26, 2009, while speaking in front of U.S. District Judge Thomas Griesa, Mourdock stated, "As fiduciaries, we can't allow our retired police officers and teachers to be ripped off by the federal government. The Indiana state funds suffered losses when the Obama administration overturned more than 100 years of established law by redefining 'secured creditors' to mean something less... The court filing is aimed not only at recouping those losses but also reasserting the rule of law..."[26]

During a May 21, 2009, interview with Reuters, Mourdock stated, "They bought according to the rules, and then the rules got changed," and, "Our portfolios are no longer going to buy the secured debt of American corporations that are accepting bailout moneys. It is an unacceptable risk for us to purchase that debt."


Mayo v. Prometheus
The Department of Justice specifically pointed out to the Supreme Court that they shouldn’t make 101 the single inquiry because that violated the statute. To this Justice Breyer responded in his opinion writing that the Supreme Court must “decline the Government’s invitation to substitute §§102, 103, and 112 inquiries for the better established inquiry under §101.” Decline the invitation? It really isn’t an invitation! The statute requires consideration of each of the individual sections and generations of prior Supreme Court precedent specifically prohibited conflating the various sections of the statute. But as is typical, the Supreme Court didn’t overrule those prior precedents that mandated a wholly different analytical framework; they merely ignored them because they could.

Alice v. CLS Bank
Supreme Court held that because the claims are drawn to a patent-ineligible abstract idea, they are not eligible for a patent under Section 101. The problem, however, is that the Supreme Court has never defined the meaning of the term “abstract idea.” Furthermore, not once in the decision did the Supreme Court even use the word “software,” although the patent in question was undeniably a software patent and the Court’s decision has been used at the USPTO, PTAB, in Federal District Courts and at the Federal Circuit to either deny issuance of software patents or declare previously issued software patent claims invalid because the subject matter is patent ineligible. Everyone in the industry knew this decision, one way or another, would have major impact on software patents and the Supreme Court didn’t even use the term once?

James said...

Sure I read the article, and sure they are terribly-reasoned decisions. My point is that Quinn doesn't really care about that. He's a shill for companies that want to patent things that should be unpatentable, and if the Court had used the same kind of flawed logic to rule the other way, he would have praised it as a victory for "innovators." He only complains about the flaws in the court's jurisprudence because it went against his side.

CP said...

Flemming v. Nestor
“To engraft upon the Social Security system a concept of ‘accrued property rights’ would deprive it of the flexibility and boldness in adjustment to ever changing conditions which it demands.” The Court went on to say, “It is apparent that the non-contractual interest of an employee covered by the [Social Security] Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”

CP said...

The point of my post wasn't whether Quinn is a bro or not, it's whether the court is making egregious mistakes in commercial cases - and it is.