Last week we penned:
“Judicial activism is when judges and Justices issue rulings diametrically opposed to the Constitution and existing law – because they’d prefer their Leftist ideology be imposed instead.
“These judges and Justices aren’t interpreting law – they’re writing law. They should stop attempting to con us, take off the robes – and run for legislatures….
“Conservative judges practice judicial restraint. As in restrained by the Constitution and existing law. As in government – restrained by the Constitution and existing law.
“Conservative jurisprudence – is antithetical to judicial activism….
“It is NOT judicial activism for a conservative court to reverse a terrible precedent from a preceding Leftist court. It is a restoration of judicial restraint – and thereby government restraint.”
You say you want several examples of judicial activism that is a particularly egregious assault on the Constitution?
Well, since you asked….
“(A) 2014 decision of the United States Supreme Court about patent eligibility. The issue in the case was whether certain claims about a computer-implemented, electronic escrow service for facilitating financial transactions covered abstract ideas ineligible for patent protection.
“The patents were held to be invalid because the claims were drawn to an abstract idea, and implementing those claims on a computer was not enough to transform that idea into patentable subject matter.
“Although the Alice opinion did not mention software as such, the case was widely considered as a decision on software patents or patents on software for business methods.”
What Alice did – was eviscerate the safeguards normally afforded software patents. Which in the Computer Economy – isn’t really that big a deal.
I kid. I’m a kidder.
But Alice – wasn’t just Alice. It was the fourth of four awful, judicial activist, anti-Constitutional patent rulings by the Court:
“Since 2010, the Supreme Court has reshaped patent eligibility jurisprudence through four important cases including: Bilski v. Kappos (2010), Mayo v. Prometheus (2012), Association for Molecular Pathology (AMP) v. Myriad (2013), and Alice v. CLS Bank (2014).
“Prior to 2010, the Federal Circuit determined patent eligibility using the ‘machine-or-transformation’ test. The Supreme Court rejected this test in Bilski and seemed to impose §§ 102 and 103 considerations on the patent eligibility analysis.
“In the subsequent Mayo, Myriad, and Alice cases, the Court developed a two-part test for determining patent eligibility that is now used today.”
Did you get all that? The Court “Reshaped patent eligibility…” and “Developed a two-part test for determining patent eligibility….”
In these four cases, the Court created out of whole cloth a whole new set of patent eligibility standards. The Justices weren’t interpreting law – they were writing it. Again, the Judicial Branch isn’t supposed to do this – the Legislative Branch is.
The damage was immediate – and devastating.
I’m going – with dirty, dirty trick:
“Alice has been busy the last two months, continuing to haunt the federal courts and the Knox and Randolph buildings at the USPTO….
“There have been 34 district court decisions in the past two months, but the percentage of invalidity decision is holding constant at 70.5%. The number of patent claims invalidated is now over 11,000, but also holding steady at around 71%….
“Motions on the pleadings have soared, with 23 in the past two months alone, and the success rate is up a tick from 70.1% to 71.4%.
“PTAB is a bit mixed: the CBM institution rate is down from 86.2% 83.7%, but the final decision rate is still 100%, with 6 decisions in the past two months invalidating the patents in suit.”
(PTAB – is the Patent Trial and Appeal Board. Another, different awful aspect of America’s Barack Obama-era assault on Intellectual Property [IP].)
Get all those 70%+ patent murder rates? That’s courts using Alice as precedent – to mass murder US Patent and Trademark Office (USPTO)-approved patents.
The hole in the Constitution and the law blown by the Alice decision – was largely through Section 101.
“Over the last eight years, however, a series of Supreme Court decisions on Section 101 have substantially moved the line on what is patent-eligible. These rulings have created uncertainty about the validity of previously issued patents, many of which companies have already relied upon to justify significant research and development investments.…
“(T)he manner in which case law has been developing is creating profound uncertainty on what is and what is not patentable. Whether or not one gets a patent or that patent survives in court should not depend on which patent examiner your case is assigned to, or what judge you appear in front of.”
This is the Rule of Men – not the Rule of Law. And results in awful results like this:
“(T)he § 101 rejection rate for patent applications in the e-commerce work groups (3620, 3680, and 3690) approaches 100%….(T)he § 101 rejection rate in the e-commerce work groups…has now tripled.
“The remaining work groups have also seen their § 101 rejection rates rise by 200-300%….While it did not surprise us that these work groups were at the very top of the list for § 101 rejections, we also wanted to know what other technologies are particularly prone to § 101 rejections.”
The solar-system-sized hole these cases blew through Section 101 – has done titanic damage to patents. It prevents huge numbers of patents from being approved. And rips away huge numbers of patents that have been approved.
Some of us who like the Constitution and its IP protections – are asking for some judicial restraint to rein in Alice’s radical judicial activism.
Again, this restoration of patent Constitutionality and sanity wouldn’t be judicial activism. It would be judicial restraint – undoing judicial activism.
Which we sincerely and wholeheartedly hope happens – as soon as the Court can make it so.
This first appeared in Red State.