It took less than two minutes Monday for the high-stakes patent case in the Supreme Court to descend to the level of questioning whether “Lorenzo Jones” could get a patent on one of his hare-brained inventions, if Bernard Bilski and Rand Warsaw could get one on their theory about managing business risk. “Jones,” an old-time radio figure who thought his creations in a garage would bring him fame and fortune, made an appearance in the first question, by Justice Antonin Scalia.
Scalia also suggested the seeming absurdity of a patent for Dale Carnegie’s influential 1936 book, How to Win Friends and Influence People. But it was the “Lorenzo Jones” comment that set the tone for the entire argument in Bilski, et al., v. Kappos (08-964). It would take a most inventive analyst to find a way in the argument for the risk-management idea under review to fit into the Patent Act’s coverage. The idea had no defenders whatsoever on the bench
The largest question left unanswered when the one-hour argument was over was whether the Court would go forward and issue a major new ruling interpreting patent law, when the practical result here seemed so evident. Lawyers and judges have invested heavy resources in the Bilski case, and it does raise a fundamental question that may well need answering. But, when there may well be no formulation of patent law that would salvage the Bilski-Warsaw creation, why bother?
J. Michael Jakes, a Washington lawyer arguing for a patent on that invention, faced a seemingly unending litany of hypotheticals to test how far he would take his plea for wide access to a patent monopoly. Justice Sonia Sotomayor wondered if a patent would be available on “a method of speed-dating,” Justice Ruth Bader Ginsburg asked about methods for avoiding corporate takeovers or picking a jury, Justice Stephen G. Breyer brought up a successful businessman’s right to protection for “how he made his money” and a method for teaching antitrust law that “would keep 80 percent of the students awake,” Chief Justice John G. Roberts, Jr., wondered about a business model counseling “buy low and sell high,” and Justice Anthony M. Kennedy questioned patent rights for someone who went to the Bureau of Statistics and worked out a table of life expetancy. On and on the hypotheticals went.
These schmucks actually want a software patent on managing hedge funds according to the weather.