Mark Gritter (markgritter) wrote,
Mark Gritter
markgritter

Dangers of Specialization

Patent and policy junkies had been waiting for the Supreme Court decision in Bilski v. Kappos to provide some clarity on what "business processes" were patentable, and which were not. But it's a mess of a decision, striking down the specific patent but also the test which the Federal Circuit applied to reach that conclusion. Instead, the "umpiring" Supremes laid out a set of "clues", "tools", and "guideposts" that produce more uncertainty instead of less. (Maybe the Roberts court views this as their job--- instead of actually trying to achieve clarity, make a sufficient mess that Congress has to clarify what the law actually is?)

You practically need a Venn Diagram to understand who said what on what is, on its face, a 9-0 decision!

* Opinion: Roberts, Thomas, Alito
* Opinion minus two sections: Kennedy, Scalia
* Concurring opinion 1: Stevens, Ginsburg, Breyer, Sotomayor
* Concurring opinion 2: Breyer
* Concurring opinion 2, Part II only: Scalia

Wendy Seltzer suggests in "Bilski and the Value of Experimentation" that the confusion arises because patent law is unique--- all appeals are funneled through a single court, the US Court of Appeal for the Federal Circuit. This short-circuits the normal process by which multiple circuit courts may look at the same issue, and arrive at either a consensus view or a clearly defined split. The Supreme Court can take advantage of these multiple viewpoints in crafting a test or clarifying the law. As Seltzer writes:

Circuit splits are good for judicial decisionmaking. They permit experimentation and dialogue around difficult points of law. (The Supreme Court hears fewer than 5% of the cases appealed to it, but is twice as likely to take cases presenting inter-circuit splits.) Like the states in the federal system, multiple circuits provide a “laboratory [to] try novel social and economic experiments.” Diverse judges examining the same law, as presented in differing circumstances, can analyze it from different angles (and differing policy perspectives). The Supreme Court considering an issue ripened by the analysis of several courts is more likely to find a test it can support, less likely to have to craft one from scratch or abjure the task. At the cost of temporary non-uniformity, we may get empirical evidence toward better interpretation.
Tags: law, patent, policy
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