As Anthony Kennedy appropriately noted, there were some in the patent community who "[T]hought we [in the Supreme Court] -- you thought we would mess it up."
With good reason.
Bilski concerns patentable subject matter. For those outside the patent community, it may come as a surprise just what can (and very frequently is) patented. Naturally occurring genes and proteins, associated sequences, RNA, mRNA, and siRNA molecules, along with bacteria, viruses, even living, breathing mice and other animals and plants, are very often the subject matter for validly issued patents (the ACLU and other groups notwithstanding).
And it's not just genes, though goodness knows that's bad enough. The United States of America is one of the few countries in the world to have such little confidence in the operation of their markets that they grant patents for "business methods." These patents regard just what they sound like: methods for conducting business. There are all kinds, from techniques to reduce tax liability, to methods for operating mutual funds, to, in the case of Bernard Bilski, "a method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price."
Now, scholarly, insightful analysis of the legal issues presented in Bilski is available elsewhere. For purposes of this blog, I'd like to focus on the remarks of the justices themselves.
First, it's worth noting the academic backgrounds of the folks who wear the robes: three history majors, two English majors, a Philosophy, a Political Science, and two unknown "arts" majors. Not a single one of them could have filed a patent application with the Patent Office (which requires a degree in engineering or one of the natural sciences). Which explains (by half) the scientifically bizarre nature of the following exchange between Justice Scalia (a History major) and Mr. Bilski's counsel, Michael Jakes (an electrical and computer science engineer by training):
MR. JAKES: Well, it's not that clear from the Federal Circuit's transformation test whether that would apply or not, because although the Federal Circuit has said transformation of data might qualify, it said it has to represent something physical, something -- a real object. And sound doesn't necessarily have to be that. Sound can be generated artificially. So --
JUSTICE SCALIA: Sound -- sound is not physical, and electric current is not physical?
MR. JAKES: I think electric current is physical.
JUSTICE SCALIA: Yes, I think so.
MR. JAKES: Yes.
JUSTICE SCALIA: Sound is, too.
MR. JAKES: It can be, but when it's transmitted over a wire, it's not. It's something else. It's an electrical current then.
JUSTICE SCALIA: Sound is not transmitted over the wires. Sound has been transformed into current, and current is transmitted over the wire and then transformed back at the other end into sound.
MR. JAKES: Yes, and I would agree --
Nothing in the questionable scientific nature of that back and forth matches the wackiness found in some of the other exchanges. This one, focusing on the economic history of the United States, also featured Scalia, this time in a field regarding which he at least was qualified to propound:
JUSTICE SCALIA: You know, you mention that there are all these -- these new areas that didn't exist in the past because of modern business and what-not, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.
MR. JAKES: They might have, yes.
JUSTICE SCALIA: Well, why didn't anybody patent those things?
MR. JAKES: I think our economy was based on industrial process.
JUSTICE SCALIA: It was based on horses, for Pete's sake. You -- I would really have thought somebody would have patented that.
Stephen Breyer tried (and failed, hence it's omission here) some humor at one point regarding a method he should have patented for teaching antitrust law, but Sonia Sotomayor managed to get in a very nice little comment on a subject, potentially, of great interest to her:
JUSTICE SOTOMAYOR: So how do we limit it to something that is reasonable? Meaning, if we don't limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General's phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?
All joking aside, however, the undisputed winner of the prize for most incomprehensible, unknowable, unsearchable, generally weird pronouncement in oral argument is Stephen Breyer, the philosopher of the bunch:
JUSTICE BREYER: Suppose you say this. I'm just sort of testing things out. Start with Diehr. I mean, and Diehr has these words in it, similar words, it just says e.g. -- are you following me?
MR. STEWART: Yes.
JUSTICE BREYER: Now, you say what is it they have done in this case in the Federal Circuit? They have pulled back. That's a move. That's a move. They pulled back insofar as they are pulling back from business methods, not machines, dah, dah, dah, dah, dah. Okay, we see no problem with that.
You know, the luxury of my current position, sitting here in front of my computer, (physically transforming, or perhaps not transforming, the thoughts swirling in my brain into the words appearing on this screen) is that I don't have to nod and confirm my understanding of a comment that I know damn well I don't understand in the least.
So just to be clear, I say to Justice Breyer, "No, your honor, I'm not following you. Neither you, nor the majority of your colleagues on the bench, are saying anything which, to my mind as a patent attorney, make much sense at all. With the exception of Justice Sotomayor, who held forth a shining light of reason in the middle of arguments (page 38, lines 14-17) by saying, almost as an aside:
JUSTICE SOTOMAYOR: Well, that -- that goes back to, not 101 but 102 and 103. That goes back to obviousness or the standard weeding mechanisms for patent."
But I'm not arguing before the United States Supreme Court. I don't work for a big litigation firm. I don't have a degree in computer or electrical engineering. And I have never participated, even once, in speed dating.
Dah, dah, dah, dah, dah.
*For the record, here are the collegiate backgrounds, as far as I've been able to gather them:
Roberts: History, A.B.
Stevens: English, B.A.
Scalia: History, B.A.
Kennedy: Political Science, B.A.
Thomas: English, A.B.
Ginsburg: B.A. (major unknown)
Breyer: Philosophy B.A.
Alito: B.A. (unknown, from Princeton School of Public Policy and International Affairs)
Sotomayor: History, A.B.
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