This court doesn't intend to hurt the software industry (although it
obviously does so). It's a different problem.
The problem that there's a
fundamental conflict of interest, though it's not usually viewed in those terms
and the justice system isn't really designed to deal with it. Any judge on this
circuit has to be an expert on patents, by definition. But this very expertise
makes them far more likely to be pro-patent in general, and thus less likely to
see the HARM that their militantly pro-patent policies have created. Obviously
some do see the harm, but it's hard to see the harm when you help run the system
that causes it.
Usually a judge is asked to interpret some piece of
legislation, under the assumption that the judge is a disinterested third party.
For deciding a narrow patent question, I think that's still typically true.
But in this situation, the question is whether or not a whole category of "cool
new stuff" should be within their jurisdiction. In this case, the judges are
not disinterested third parties at all. Instead, expanding the scope of patents
gives them more power, prestige, and indirectly money. It even gives them a way
to "prove" that they are important. I'm not saying that they are bribed - I do
not think they are - but they are absolutely not
disinterested.
People like Judge Posner, who do
not specialize in patents, are more likely to have a balanced view, and focus on
the INTENT of the law (not just the mechanics) and the societal and economic
EFFECT of different laws and interpretations of law. After all, they can
take a disinterested view and see the big picture. It's great that there are
people with that larger, less parochial view.
If we pay people to evaluate
patents and be part of the patent system, obviously they would tend to want to
make more patents and expand the scope of patentability. It's not that the
judges are incompetent or evil. I think most are very competent in their
specialty, and I don't think they INTEND to do the harm they cause. But you're
asking them to judge against their own self-interest, admit that they have
damaged the country with their past rulings, and also to voluntarily reduce
their own power and influence. Such rulings are, to say the least, highly
unlikely.
It's like asking the fox when he should be allowed to eat geese.
The fox is an expert on eating geese, right? Unsurprisingly, the fox will tell
us that in his expert opinion (using his broad expertise) that there should be
an unlimited scope for geese-eating. Of course, the geese are not experts in
geese-eating, so no one lets the geese decide; the geese just get the
opportunity to honk a few times before they get roasted. Similarly, an expert
on patents will typically decide that there should be an unlimited scope for
patents, because they have self-interested reasons to make that decision.
Again, and again, and again.
This explains various delusions like "loading
software into a machine creates a new machine". No it doesn't. Really, it just
doesn't.
It'd be worth presenting the arguments against software patents,
but I wouldn't expect the court to change its mind. Instead, it'd be fodder for
the Supreme Court, which might hear the case. So please, present the arguments,
so that they can be used for the appeal.
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