They have stated in Bilski what their position is:This Court has
“more than once cautioned that courts ‘should not read into the patent laws
limitations and conditions which the legislature has not
expressed.’...
Any suggestion in this Court’s case law that the Patent
Act’s terms deviate from their ordinary meaning has only been an explanation for
the exceptions for laws of nature, physical phenomena, and abstract ideas. See
Parker v. Flook . This Court has not indicated that the existence of these
well-established exceptions gives the Judiciary carte blanche to impose other
limitations that are inconsistent with the text and the statute’s purpose and
design. Concerns about attempts to call any form of human activity a “process”
can be met by making sure the claim meets the requirements of
§101
So, their position is that they will only rule on the basis
of the text and the statute’s purpose and design. They explain that they are not
going to set legal policy for the courts:
The argument that
business methods are categorically outside of §101’s scope is further undermined
by the fact that federal law explicitly contemplates the existence of at least
some business method patents. Under 35 U. S. C. §273(b)(1), if a patent-holder
claims infringement based on “a method in [a] patent,” the alleged infringer can
assert a defense of prior use. For purposes of this defense alone, “method” is
defined as “a method of doing or conducting business.” §273(a)(3). In other
words, by allowing this defense the statute itself acknowledges that there may
be business method patents. Section 273’s definition of “method,” to be sure,
cannot change the meaning of a prior-enacted statute. But what §273 does is
clarify the understanding that a business method is simply one kind of “method”
that is, at least in some circumstances, eligible for patenting under
§101.
A conclusion that business methods are not patentable in
any circumstances would render §273 meaningless. This would violate the canon
against interpreting any statutory provision in a manner that would render
another provision superfluous. See Corley v. United States. This principle,
of course, applies to interpreting any two provisions in the U. S. Code, even
when Congress enacted the provisions at different times. See, e.g., Hague v.
Committee for Industrial Organization. This established rule of statutory
interpretation cannot be overcome by judicial speculation as to the subjective
intent of various legislators in enacting the subsequent provision. Finally,
while §273 appears to leave open the possibility of some business method
patents, it does not suggest broad patentability of such claimed
inventions.
So, even if the Supreme Court guessed that what the
text of the law said was not what the legislators had in mind, the word of all
the applicable laws remains paramount. The only exception that they make is
where the literal word is inexplicit or ambiguous. In that case, they allow
themselves to be guided by the notes provided by the legislators as to their
objectives.
Legislators set policy and the courts uphold the letter of
the law.
Finally, look at what they said in Microsoft v.
AT&T:
AT&T urges that reading §271(f) to cover only
those
copies of software actually dispatched from the United
States creates a
“loophole” for software makers. Liability
for infringing a United States patent
could be avoided, as
Microsoft’s practice shows, by an easily arranged
circumvention: Instead of making installation copies of software
in the United
States, the copies can be made abroad,
swiftly and at small cost, by generating
them from a master supplied from the United States. The Federal Circuit
majority
found AT&T’s plea compelling:
“Were we to hold that
Microsoft’s supply by exportation of the master versions of the Windows®
software—specifically for the purpose of foreign replication—avoids
infringement, we would be subverting the remedial nature of §271(f), permitting
a technical avoidance of the statute by ignoring the advances in a field of
technology—and its associated industry practices—that developed after the
enactment of
§271(f). . . . Section §271(f), if it is to remain effective, must
therefore be interpreted in a manner that is appropriate to the nature of the
technology at issue.”
414 F. 3d, at 1371.
While the majority’s
concern is understandable, we are not
persuaded that dynamic judicial
interpretation of §271(f)
is in order. The “loophole,” in our judgment, is
properly
left for Congress to consider, and to close if it finds such
action
warranted.
The Federal Circuit were all for bending the word of
the law in order to meet their subjective view of what the law should be
achieving. The Supreme Court said that was wrong and that the word of the law
would prevail in the case, even if it got Microsoft off on a 'technicality'. If
that was a concern for Congress, then Congress must change the law. Until that
time, the word of the law is paramount.
At least back as far as 2006, the
Supreme Court were chastising the Federal Circuit for deciding what the
Constitution meant to achieve and selecting just those parts of the law and the
Supreme Court's case law that met their own agenda. It would seem that little
has changed.
As a postscript, the Supreme Court misunderstood how
computers work and got Microsoft v. AT&T wrong according to patent law. As
far as patent law is concerned, business processes are not, in my opinion,
inventions that deserve a monopoly under the Constitution. The law, itself, is
unconstitutional in this respect. The Supreme Court is absolutely right: the law
is the law and it is what it is.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
|
