This is an extremely foolish title, and the tone of the article is likewise foolish. It's highly unlikely the Supreme Court has not read the amicus briefs, and almost impossible that they will not before passing judgement. These are not 9 people picked off the street and thrown on the bench to judge what the application of law is, and they don't mess around. Reading pretty much any Supreme Court decision will show you how intelligent these nine justices are.

It's popular to condemn the Supreme Court's decisions if you disagree with them, and it seems equally popular to blame them on the Supreme Court's fundamental misunderstanding of <x>. I'm not saying the SCotUS is flawless—hardly, they are made up of people—but it would behoove authors and readers if you started from the base assumption that you are dealing with brilliant jurists. Indeed, that is how lawyers have to prepare.

The lawyers arguing against the patent were likely aware both of the justices' intelligence and their general interpretations of patent law, therefore chose not to tread the path of invalidating medical patents in general. The questions asked by the justices were fair. Not expressing skepticism does not mean there is no skepticism, for one. We don't find that out until the decisions are written.

Whether this was a case where someone should have gone after medical patents in general is up for debate. In particular, it seems unlikely that the Mayo clinic, which probably has its own medical patents, would try to invalidate the concept itself.

If you read some more of the questions and interactions, you'll see that the Supreme Court seems anything but oblivious: they're trying to probe what should and should not be patentable in a field that involves actions and reactions that are all based in chemical fact. If neither they nor the lawyers can provide a satisfactory test to determine this, then all they can do is decide the specifics of this case.

True change in this area really is something where the Court can only do so much. The definitions of patents in general are determined by Congress and its laws. If we want to change them, we have to focus there. SCotUS has merely become our backup because it's been relatively difficult, particularly in the last 40 years or so, to convince Congress to pass laws that are potentially damaging in any way to the bottom lines of businesses.

"True change in this area really is something where the Court can only do so much. The definitions of patents in general are determined by Congress and its laws."

Sorry, but this is just completely wrong. The law regarding patentable subject matter is almost entirely judge-made. There are broad categories of inventions in software, medicine, business methods, and elsewhere that clearly were not eligible for patent protection in 1980 and are eligible for patent protection under recent court decisions. This didn't change because Congress passed new legislation. It changed because the courts (primarily the Federal Circuit) changed its mind. Given that fact, it makes sense to criticize the courts for continuing to expand the bounds of patentable subject matter, no?

To some extent. But if you give so much latitude to judges, you're asking for complications. Unfortunately, things like obviousness and originality are not clear cut. If we want limits per se, I think Congress is the place to implement them, not the courts.

That said, it's worth asking whether the courts are actually expanding the bounds of patentable subject matter, or simply upholding the breadth of the existing laws. It doesn't seem like this is a case where they could expand it—that would involve overturning precedent. If they aren't overturning precedent, they're simply saying “yep, the law is in fact this broad”. I'm not super-well-versed in the details of the case, however.

"It doesn't seem like this is a case where they could expand it—that would involve overturning precedent."

Which precedent would that be?

That's precisely my point, it doesn't seem like there is precedent. For it to be an expansion, there would have to be a precedent that limits it that they'd be overturning. Otherwise, they're just confirming where the “edges” are.

Exactly, that's why it reached the supreme court. The US has a COMMON LAW system. That means that this case will be applied to further cases in order to determine what the common punishment should be. The supreme court sets supreme precedent.

So everything is patentable and it's judicial activism for the Supreme Court to rule that something is unpatentable? Why do you assume it works that way and not the other way around?

At no point have I used the word judicial activism, nor will you ever hear me use it, since judicial activism is code for "judges doing their job". They can, if they see it in the law, set limits on patents. If there is nothing in the law supporting such limits, they would be hard pressed to add them randomly.

I was, unfortunately, being a bit pedantic earlier and nitpicking your terminology (expanding vs actually interpreting some initial limits) instead of debating your actual point; I apologize for that.

To add to your point about the justices, Chief Justice Roberts is on the record for saying that it is not unusual for him to go through 20-25 drafts before he signs off his opinion on a case. You can watch him saying that here: http://www.c-spanvideo.org/program/286078-1

His says this around 42:45 min into the video.

The article is certainly biased. That's fine, it reads as an editorial and readers here can digest it accordingly.

Your feelings on SCofUS seem a bit ideal to me. My opinion is that possibly every case the supreme court hears is an act of judicial activism, as they only hear the cases they want and there is plenty of detail available to the court by both parties prior to deciding whether to hear a case or not. In many cases, we can predict how the vote will turn out. These are political appointments. They are lifetime ones, but a justice has to serve a career towing the party line in order to make the short list.

My feelings may be a bit ideal, though again, reading decisions makes it apparent both how intelligent these people are and how their “wrong” decisions are still very well-justified. However, I think yours are perhaps too cynical.

For example, David Souter was appointed by Bush Sr and ended up being one of the most liberal justices on the court. Harold Blackmun, author of the majority decision in Roe v Wade, was appointed by Nixon. Ford appointed John Paul Stevens. Breyer and Ruth Bader Ginsburg, on the other hand, were both appointed by Clinton.

So the political leanings are not as clear-cut as you make them out to be. And there is significantly reduced pressure to toe any sort of party line after you are named to the court—that's precisely why the appointments are for life. Moreover, in order to get confirmed, it's tough for a justice to simply toe the party line. Confirmation is a 2/3 deal in the Senate, and it's extremely rare for one wing or the other to have 2/3 of the seats there. No one takes Supreme Court appointments lightly.

Even so, I think I've tempered for idealism. Idealism would say they'd come up with a perfect, fair decision, every time. I'm just saying they're not oblivious. They may have a different interpretation, they may not have a complete technical understanding, but these are not people who are oblivious. They're smart, they know how law works, and this is ultimately a debate about law, as it should be in a court. Yes, there is room for interpretation, but these are not fools, and I feel like the characterization of the Supreme Court as “oblivious” is a bit excessive in that sense.

When I tried to submit this story, I cut the word "oblivious" out of the title. Of course, someone else had beaten me, so it counted as an upvote for this copy, which uses the original title.

Anyhow, you're right that they will read the amicus briefs. But I do wish they had given them more consideration. While it's true that you can't really gauge how they'll rule from the questioning in general, statements about how they "all agree" that it would be patentable if they'd included a few more numbers are very worrisome. Yes, sometimes they'll harshly question the side they ultimately support, perhaps to see how it fares under scrutiny, but I fear that important points were not disputed at all during that exchange.

"Reading pretty much any Supreme Court decision will show you how intelligent these nine justices are."

Not saying they aren't intelligent. But they might be intelligent enough to have their wives take hundreds of thousands of dollars in lobbying money directly related to the cases before them and get away with it. So, not their intelligence I'm worried about. Its their ethics and morality.

Well, a few thoughts. I haven't looked into this in detail, of course, but some general ones: - In this particular case, the issue in question was that one justice's wife (Justice Breyer) owned stock in Nestlé, which acquired Prometheus Laboratories, one of the parties in the case, this year. This fact seems to have come out during the case, and the justice's wife ultimately sold her stock before the case began. Nestlé has pretty powerful brand recognition, so it seems silly to read foul play in that particular interaction. Asking justices to never engage in stock trade and, worse, never allow their families to do so, just in case a situation like this should arise, would be somewhat foolish. We rely instead on disclosure of interests and the ability to recuse oneself if a justice chooses not to clear a conflict of interest. - I don't know of too many financial conflicts that have arisen in the court, particularly recently, that haven't been solved either by something like the above or by recusal. - It's possible you're referring to the issues regarding the healthcare law and the fact that Justice Thomas's wife has campaigned against it. If so, I'd like to see the evidence that she has taken “hundreds of thousands of dollars in lobbying money”. I'm not saying it hasn't happened, just that I haven't seen anyone mention money changing hands—people are mentioning a potential conflict of interest that she's advocating against it, but that's a different matter entirely.

Honestly, this is probably the best possible thing.

The reality is that under the Patent Act, things which are not fundamentally "inventions" -- such as software algorithms, genes, and in this case, data correlations -- can legally be granted patents. This is a problem with the Act, not with any given court's interpretation of it, and that is what needs to change.

I can think of no better way to build political support for a major patent reform initiative than a constant stream of human-interest pieces on 60 Minutes where a handsome doctor earnestly explains that he couldn't save Bobby because of a patent claim from some faceless corporate troll.

Software is abstract and complicated. Saving Bobby is emotional and simple. If patents start to impact medicine the way they've impacted software development, they're not going to last very long in their current form.

I don't believe these things work the way you are assuming they do. Unjust behavior by the part of big corporations like Prometheus need to be stopped at the root and at first sight.

Please never hope that the triumph of someone over you in argument, specially one that that gives them a new weapon to fight you, will eventually and reliably become a weakness in their defenses.

I'll try to explain why I think so without using analogies, since they almost always break arguments apart. I hope that by sticking to this particular case I am not interpreted as someone trying to straightly so predict the future but as someone making a point.

Let's say that Prometheus wins this, thus having the possibility of using this case to patent medical procedures and the using of statistical correlations. You are assuming that big pharmaceuticals will use this to stop lots of doctors from rightfully saving lives using what is now standard medical procedure... but I believe big pharmaceuticals are doing just fine now, and are not stupid enough to piss off the whole US population. What I would do if I were them is to extend the validity of the patent on a drug (in the case describe in the article it is thiopurine) by using another related patent that hasn't expired yet and that covers a procedure. This won't send a substantially higher number of Bobbys to the grave, but it won't reduce the cost of each non-dying Bobby to not-die, which is what one supposes eventually happens when patents on a Bobby-death-stopping drug expires and hence the drug can be manufactured generically or by competing big pharmaceutical labs.

So, in the end they get to make more money in the long run (since patents can be made to last longer) and things don't get worse for Bobby and the people, they just don't get as better as they should.

I agree with you whole-heartedly on these patents. But... I think the point that you're missing is that the Supreme Court is like a meta-court. You don't go there to appeal your case, you go there to appeal specific decisions and interpretations of the law.

IMO, from a lawyers vantage point, what is the difference between a patent covering a software method (like encoding music) and a medical procedure? There really isn't any. Both are equally offensive to the folks who practice in these fields -- I have yet to meet a programmer in favor of software patents, and I'm sure doctors will feel the same way.

The problem is that the law as written is that software patents ARE ok. As long as that is true, how could any judge make a case that medical procedures are not?

I don't see this happening. Patients (in the US) don't know the cost of their care. So, when this new "patent tax" appears, it will be hidden from the consumer and silently passed down the chain (to insurers, to companies) and medical costs will continue to spiral out of control. It's unlikely to actually change the care provided -- but it's certain to make care more expensive.

I wouldn't count on congress fixing it either. I'll pass on something I recently overheard: "Lawyers should be banned from becoming law makers. It's a clear conflict of interest. "

I don't think it's the cost he's referring to. The fact that you could personally could be treated differently because of patent law would have a profound impact on the public perception of patent law. That could help lead to real reform of the system.

> The reality is that under the Patent Act, things which are not fundamentally "inventions" -- such as software algorithms, genes, and in this case, data correlations -- can legally be granted patents.

I have both hardware and software patents and I don't see this distinction that you feel is obvious.

Why is the use of a specific mechanism consisting of and, or, shift, etc to, say, efficiently route vehicle traffic any less of an invention that then removing sulphur before heating rubber to produce a substance that retains its elasticity? (Hmm - that removal and the relevant monitoring looks like a "material correlation".)

BTW - You can't patent "genes". You can patent specific genes to do specific things.

Thank you for pointing out the primary culprit here--Congress and its lame legislation in this area.

The headline's use of 'legalize' only perpetuates the confusion surrounding Supreme Court decisions. It is the underlying legislation that gives life to the patent claim not the fact that the Court upholds patents that succesfully adhere to a misguided law.

Ambiguous or otherwise weak legislation leaves the court in a no-win situation of shaping public policy via judicial opinions.

One problem is that even unambiguous legislation gets twisted by agency interpretations and case law to no longer mean what it originally said.

This is true.

And because of the implications of what you just said above. I'll leave it at that.

EDIT: In retrospect, I probably shouldn't have ended the post in that way. Instead, I'll acknowledge that this solution to silly patents is certainly viable. But that at the same time calling it "The best possible thing" seems somewhat narrow in the grand scheme of things. After all, it DOES require people to die to be workable.

I wonder if they would consider CPR to be patentable.

Truly Dr. Heimlich missed an opportunity when he failed to patent his "trademark" maneuver.

In the future, perhaps we'll be expected to wear bracelets (or microchips) that tell the paramedics on which life-saving techniques we're up-to-date on our licensing payments.

I think it's more reasonable that doctors or health care providers or health insurance companies will be the ones that actually have to license any patents because that's where the money is. It's not like consumers need to keep a bracelet or file of all the patents they've licensed so they know which software and hardware they can buy.

Can you imagine not being able to get a cast because your hmo didn't license the patent for "applying gauze soaked in plaster to a broken or fractured limb to prevent the bone from moving while it heals"? crap.

Here's a good example though. Serafem is basically prosac, but it's approved for treating severe PMS basically. They license the patent for that correlation from MIT.

A doctor prescribing generic prosac instead would then be violating MIT's patent.

Unfortunately here medical patents are already here. I don't think the Supreme Court is going to switch course either. What we really need is for Congress to act and impose compulsatory licensing on all patents if the end technology is a medical one. This is also what is needed to bring medical costs down in this country. Unfortunately Congress is in the hands of big business so they will probably run the other direction....

The Supreme Court does not "legalize" anything. They interpret existing laws and decide on their legality. They can't shoot it down just because it sucks. Their decision is based on whether or not the law runs afoul of the Constitution. Don't like the law? Blame the a-holes who wrote it. Better yet, try to get it changed.

It's very... sanguine of you to think the Supreme Court is full of bloodless rationalists, computers that read statutes and, via sheer force of deductive reasoning, come to a conclusion.

In reality, the Supreme Court is supremely political, and they regularly do shoot down a law because they think it sucks or approve a law because shooting it down would make people angry.

The situation is quite a bit more nuanced than that. The court will certainly go to substantial lengths to find a way to uphold a popular law or strike down a bad law, but they don't make things up out of thin air.

Please provide examples of both assertions.

It's not striking down a law, but you can see the process at work most clearly in Bush v. Gore. It was, on the face of it, a horrible decision, and the court itself said it shouldn't be used for any precedent; it's not been cited once since then.

But it isn't merely a matter of disagreeing with the decision. It's the crass politicization of it. If you look at the breakdown of the vote, the Justices who supported Bush supported Bush, and those who supported Gore supported Gore. (Thomas's wife was heavily involved in Bush's campaign, and O'Conner had said the evening before the election that she'd find Gore's election personally disastrous.)

Nor can ideology account for the decision: the same justices who are pretty stingy when it comes to applying Fourteenth Amendment rights generally suddenly found it imperative to extend it to a radically new situation in an usurpation of state rights with federal judicial might. The converse was also true, as the Justices usually distrustful of states running their own elections suddenly thought that sacrosanct.

Edited to add a particularly damning quote:

"The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." IOW, Scalia is banning the recounting of the votes of undecided legality because it might make Bush's election look less legitimate and cause political turmoil.

> It's not striking down a law, but you can see the process at work most clearly in Bush v. Gore. It was, on the face of it, a horrible decision, and the court itself said it shouldn't be used for any precedent; it's not been cited once since then

Bush v. Gore is like a once in history Constitutional crisis. It's not representative.

Would this not fundamentally break healthcare?

Is healthcare not already fundamentally broken?

Much like software, it will limp along.

Probably only increase the costs.

I just hope medical patents are as easy to patent as some technical patents. That way I'll snake the "cure for cancer" patent right now and then troll anyone who tries to use it later.

I have no problem with patents if you are patenting an actual, working, viable product, when when you can patent an "idea" the entire purpose of a patent turns into a market full of arbitrage.

At this point I might just change careers.

Lawyer sounds like a pretty good gig right now.

You might be interested to hear about the Ticketmaster class action settlement I learned I was a party to in my email this morning.

Lawyers get $16 million, members of the class get coupons on future Ticketmaster purchases.

It's amazing that so many entrepreneurs seem to hate the large payments that class action lawyers are awarded.

Class action lawyers perform the same kind of high-risk high-reward gamble that startups engage in. While tech startups create value by making something useful, these lawyers create value by keeping powerful interests honest. The idea that they are unnecessary or should be capped because consumers will just "in the long run" "vote with their feet" has been shown to be (patently) false: corporations can take advantage of huge economies of scale when they breach millions of contracts in small, hidden ways. The only real recourse of an individual is to participate in a class action. Perhaps the biggest part of the individual's reward is that the corporation will stop its bad behavior.

I can understand distrust of the judicial system because it shows a bias in favor of the deep-pocketed. What I don't understand is why there's a distrust of class-action verdicts, where both parties compete on a relatively even playing field.

I think the main source of dislike is that the lawyers appear to be the only ones profiting: they receive substantial payouts, the lead plaintiffs they talk to receive payments, but the bulk of the class they supposedly represent receives worthless coupons. The suspicion is that they're negotiating primarily for themselves, willing to sell out the class with a shitty settlement, as long as they themselves get a good payout from it.

I've been reasonably happy with class-action lawyers when they've negotiated actual, non-trivial cash-money payments for their class. But Ticketmaster store credit, so they can take home money while failing to get anything for the class they supposedly represent? Fuck off. I filed an objection to the proposed settlement when I received that offensive proposal. If all they can negotiate is $1.50 in store credit, then I think we can safely say that they failed in their lawsuit, and shouldn't get any payment.

Sounds like a problem of the selection of legal representation. It seems there needs to be some, ah, website that helps to put together groups of plaintiffs and organizes the process of selecting a good legal team to represent them ...

... if the website got 0.25% of every settlement, it could be pretty lucrative.

As I understand it (IANAL) the vast majority of members of the class find out during the settlement process, i.e. well AFTER the lawyers have been picked.

You can technically "opt out" and go sue the company yourself, but you're not going to get people who realistically, upon receiving notice that they are getting an unexpected settlement in-between two utility bills, decide to form their own class.

Right. The point would to allow this kind of thing to happen more organically. Those with a grievance would aggregate before the legal team was chosen.

The lawyers are often "picked" because they are the only ones willing to invest many hours of legal effort out of their own pocket.

Long term, if the class action changes the practice that led to the case, than all the future customers benefit too. It's hard to calculate that kind of benefit, but it's a nice benefit.

The big difference is that successful class-action lawyers transfer wealth, while successful entrepreneurs create wealth.

When a class-action lawyer sues to enforce anti-trust laws, at least theoretically he is creating wealth. The transfer of money is incidental to an enforcement system that seeks to control the incentive structure of monopolists. Monopolies, of course, create deadweight losses in the economy. Avoidance of deadweight losses are functionally equivalent to creation of wealth.

Now, I'd certainly argue that entrepreneurs create more wealth more effectively. That said, the more we learn about economics the more situations we find where market failures undermine efficient allocations of productive capital. And by and large our solution to those market failures has involved writing laws which are enforced in many cases by plaintiff's lawyers.

If the class-actions end a practice, that frequently closes off a path where wealth would have been illegally bled off from multiple parties.

It's even funnier than that. The coupons are for $1.50 each, and you're allowed a maximum of 17 of them, no matter how many tickets you actually purchased over the years. Thanks, Ticketmaster!

I guess I'll have to reconsider then; the lawyers definitely got the short end of the stick. (;

More seriously, I would have no qualms of going into the legal profession specifically to defend against this sort of brand of crazy where possible. (And of course more mundane cases as the majority.)

I'd wake up each morning feeling MUCH better than if I became something like say, a firefighter.

Not just a coupon, but a coupon for $1.50

I hope they don't try to include something like this in ACTA to bring it across to the EU

Countries with universal health systems might be more resistant due to the immediate and visible cost to the respective Treasuries.