

Bilski patent decision coming soon - here's how the oral arguments went - grellas
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-964.pdf

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tptacek
Thanks for posting, 'grellas. I've always been under the impression that you
can't read about the oral arguments and get any clear bead on where the
decision is going to go. What's your take on this case?

A fun excerpt:

 _Justice Breyer: So that would mean that every businessman --- perhaps not
every, but every successful businessman typically has something. His firm
wouldn't be successful if he didn't have anything that others didn't have. He
thinks of a new way to organize. He thinks of a new thing to say on the
telephone. He thinks of something. That's how he made his money._

 _And your view would be, it's new too, and it's useful, made him a fortune,
anything that helps any businessman succeed is patentable because we reduce it
to a number of steps, explain it in geenral terms, file our application,
granted?_

 _Mr. Jakes: It is potentially patentable, yes._

 _Justice Breyer: Ok. Well then, if that were so, we go back to the original
purpose of the Constitution. Do you think that the Framers would have wanted
to require anyone successful in this great, vast, new continent because he
thinks of something new to have had to run to Washington and force any
possible competitor to do a search and then stop the wheels of progress unless
they get permission?_

Another one:

 _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 whatnot.
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._

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Qz
Scalia is not my favorite person, but that last line cracked me up.

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ratsbane
Agreed. I wanted to vote him up for that. That's a crazy idea... what if we
could vote up or down the public utterances of government officials?

~~~
jacquesm
I think it is called 'elections' ;)

Pity the supreme court isn't elected but nominated.

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blogimus
You want the supreme court to be less insulated from the influence of
lobbyists?

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jacquesm
To my uneducated foreigners view it looks as though the United States supreme
court is more about pushing the views of the current party in power on a few
very narrow minded issues for as long as possible, even if that party were to
fall out of favour.

Whereas I think they should be shooting for the best possible configuration
they can get.

Having the justices elected directly and only for a limited number of years
would hopefully remedy some of that but I realize that opens up other cans of
worms.

It's not an easy problem to solve. And as long as polarizing issues like Roe
vs Wade and like gay marriage figure so high in the American political
consciousness I do not expect this to change.

~~~
blogimus
There are ALWAYS going to be polarizing issues and periodic political turmoil
of some variant and degree. A leading point of merit selection (appointment)
is stability and an independent leg of the three legs of federal government
from the whimsy of term service on the electoral system. Consider the
stability of government where all three branches are subject to strong
lobbyist (big big money) influence on decision making. A branch of government
which serves as an appointed anchor provides stability, like the string on a
kite. Cut the string and where does the kite fly?

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bobbyi
Here's some discussion from groklaw back in November when these oral arguments
took place:

[http://www.groklaw.net/articlebasic.php?story=20091109191422...](http://www.groklaw.net/articlebasic.php?story=20091109191422928)

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neurotech1
Background on Bilski <http://en.wikipedia.org/wiki/In_re_Bilski>

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Herring
Anyone taking odds on yet another 5-4 decision? Anyone? Anyone?

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ars
If it reaches the supreme court you can all but guarantee a 5-4 decision. If
it was more obvious than that, it would never reach the supreme court in the
first place.

