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It'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.

>Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us.

Congress never passed a law allowing software patents, though. It was the courts (but only the lower courts, never the Supreme Court) which historically interpreted the old patent laws (written before the age of computers) to apply to software -- I don't know of any parts of Title 35 which cover software specifically. Congress could modify the law to explicitly allow software patents, but they haven't.

Nonetheless, there are two separate and completely orthogonal questions here.

1. Is it good policy to allow software to be patentable, and

2. Does existing law allow for software to be patentable?

I am fairly agnostic on question one, and about three Juris Doctorates short of being able to answer question two, but it's the Supreme Court's job to answer question two without any regard whatsoever to question one.

This article appears to be arguing about question two based on his opinions on question one, which is like arguing that a cat is a handbag because you want to be able to take it as carry-on luggage.

Even though it may be good policy for the Supreme Court to act that way, that's a separate question from whether they in fact do operate in that way.

There is extensive literature (a subset of "legal realism" which accounts strategically for judicial action) which claims that judges do in fact incorporate policy considerations in decision-making. Secondly, it's widely acknowledged that the court frequently and with considerable influence advises Congress to change the law. In that context, it might be fine & useful for this article to speak in policy terms to the Court.

This ignores how the patent statute is written. Congress sets extremely broad principles for what is patentable and leaves it to the courts to work out the details. That process of interpretation inevitably involves making policy judgments.

This isn't unusual. Constitutional concepts like "reasonable search," "cruel and unusual punishment" similarly invite courts to make policy judgments.

"Just because Congress is incompetent doesn't mean we should put it on SCOTUS to fix our problems for us."

Actually, that's exactly how the system works. Check and balances.

Not really. The court interprets the law as written by the congress. There are always some checks and balances while interpretation but that's not what the court is for.

Is that accurate in this case? My understanding is that the majority of the time, SCOTUS interprets the constitutionality of laws.

In many cases the any court (in almost any country influenced by the French law) interprets the laws and confirms if the 'new laws' is consistent with the 'old laws/ more basic laws' and not in violation with the basic premise of the constitutions. Of course this is a over-simplification but this is at the most basic the function of the courts.

But I believe the US uses Common Law (English) and not Civil law (France and many other places) system for these matters. So judge can in the US (btw IANAL) decide if a law is valid or not based on constitutionality and previous laws.

This is absolutely correct and is an important distinction and I do confess that my statements were not very precise from that regards. However, I had a long discussion with a law professor at Berkeley where she did agree that the US Common Law is highly influenced by the French Civil Law, though many law academic in US will take an exception at the statement. Also, IANAL either but am taking a few law courses here.

"Checks and balances" isn't synonymous with "one branch of government isn't doing what I want, so a different branch of government should do it." It isn't SCOTUS's job to legislate from the bench, even if the outcome would be a net win for society. Checks and balances only comes into play here if Congress has passed a clearly unconstitutional law. In this situation that is very difficult because it has to be proven that software patents are hindering the progress of science. Perhaps that seems self evident to us techies, but a lawyer has to walk into the Supreme Court and prove it to the tune of 5 Justices. I'd rather Congress just pass a law.

Congress already passed a law. The Supreme Court interpreted it as not allowing software patents. Congress has remained silent since then.

It's the pro-software-patent people who need to petition Congress. Anti-software-patent people should merely petition the executive branch to enforce the law as it stands.

Checks and balances, not sharing of responsibility. The Supreme Court exists to protect Americans from unjust laws, not to write laws that congress should be writing.

The Courts serve justice, but it is a legal justice, not a philosophical ideal.

I think you underestimate how much the SCOTUS considers the interests involved in a case not just the law.

That's not saying that SCOTUS would invalidate software patents, just the opposite. The SCOTUS discussion I've heard have turned on how invalidating software patents would be a fairly short step to invalidating all patents and there are too many interests involved to let that happen.

The argument in the supreme court debate I remember was essentially "software parents as a generic are absurd but tossing them out completely would be an earthquake that we don't want to play so we need a line that would allow some but not all software patents". Nothing turning on technicalities in the overall approach even if the solution they'd grope for would likely turn on said technicalities.

This is absolutely correct. The best Supreme court could do is decide on a case-by-case basis and settle against the patents (as they did in Bilski case). They would never ever set a precedent that can potentially go as far as invalidating something that is billions of dollars worth.

This supreme court is one of the most conservative of all time in terms of interpreting the law and limitation of its own power.

The solution can only come from the congress. The present supreme court will shy from setting a strong precedent. I don't think this is a bad thing. Relying on court to change the law is a sign of an unhealthy society who cannot control its elected representatives.

You underestimate how strong such an argument has to be to succeed.

I wish I could upvote this wise advice ten times. even if patents made it to the top of the Supreme Court docket today and they justices interrupted their summer holidays tomorrow to consider the issue, a badly-thought-out case could just as easily end up extending patent terms to the 95 years that copyrights enjoy.

Unfortunately, a great deal of legal and political debate in the US currently looks like this: http://www.youtube.com/watch?v=yo3uxqwTxk0

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