A Patent Quality Improvement: Post-Grant Patent Review: The U.S. will have a new process to seek review of patents before they go into effect. For a 9-month period after issuance, persons can challenge a patent for any alleged defect. The person opposing a patent must show likelihood that at least one claim of the patent is unpatentable or that there are important legal questions raised that would affect several other patents. This provision will generally apply to patents filed in spring 2013. After the 9-month period, review may only be sought for based on claims that the patent is invalid due to an earlier patent or printed publication.
Litigation-Related Provisions - While there had been efforts to place general limits on patent damages and new restrictions on where patent suits may be filed, these did not make it into the final bill. Expect continuing controversy on these issues. Here’s what did go into law:
On June 28, 2010, the U.S. Supreme Court issued its ruling in the biggest patent case in recent years, In re Bilski. The case related to the patentability of business methods (steps in accomplishing a business task) and has been a lightning rod in the intellectual property world (and elsewhere) during its long path to conclusion. These business method patents, typically directed to financial, Internet commerce, data analysis and business processes, are often written such that the particular machine or system used to perform the method is irrelevant. Bilski himself had tried to get a patent on various methods of managing hedge fund risk.
In one view, the patent system is simply evolving to protect modern methods of technology, which may be platform neutral. Think of the iPod, which can replace several other physical hardware tools. In another view, such methods may not seem to require the perspiration of genius of physical hardware and seem to some to be too easy to create and protect. Thus the questions posed to the Supreme Court: (a) do patentable methods require use of a particular machine or the transformation of physical matter; and (b) are business methods outside the bounds of patentability; and (c) what of Bilski’s methods of managing hedge funds.
If you’re Bilski, you now have certainty. The Supreme Court unanimously rejected his claims as being “abstract” and unpatentable math formulas. As to the other questions, we only know what’s not true. Per the Court, methods or processes, to be patentable, don’t necessarily require the use of a particular machine or the transformation of matter. That is simply one of the ways of evaluating whether a claimed method is too abstract to be protected. Finally, the Court ruled that business methods are not per se unpatentable. However, the converse is not true either – business methods are not always patentable. Rather, each inventor’s claims will have to be evaluated individually as to whether they are too abstract.
On this last point, if the Court had offered a definitive rule of unpatentability, thousands of patents across the country would have died a silent death. Depending on your perspective, this was a good or bad thing. For example, in the software community, there are many companies with valuable patent portfolios such as IBM who breathed a sigh of relief at the Court’s ruling. And there are others in that community who believe there should be no patents on software inventions who were equally dismayed.
For the inventor community as a whole, the upshot of Bilski is that there is no strict test for determining patentability of methods and processes. Flexibility and creativity in patent protection still reign. But the lack of a bright-line test means that more cases will fall within the zone of uncertainty, which may increase the cost of patent protection and litigation. While the Supreme Court may have been properly cautious in not issuing a ruling that stifled patent protection for future technologies, it did little to change the current realities faced by inventors and industry. They will keep working and keep inventing, and the Patent Office will continue to sift the wheat from the chaff.
Since the dawn of recorded time, one of the functions of government is to help decide disputes between citizens and between citizens and government. This prevents the unnecessary (and occasionally bloody) conflicts that ensue from self-enforcement of legal rights. Think vigilante mobs and feuds. If justice is going to be something more than vengeance, then it should be rendered impartially and equitably. Citizens need to have confidence that the person deciding their disputes has an open mind, knows the law and complies with the law. The process for selecting such people has been the challenge.
In the U.S. federal court system, judges are primarily chosen by presidential appointment. The U.S. Constitution provides for the Executive Branch to select, and Senate to approve, candidates for federal judge, who serve for life. This system provides a deliberative screening process for candidates by elected officials, but also then shields those candidates from political influence after approval. While there are rancorous confirmation hearings at times, they are infrequent. If candidates are well-chosen and the process well-handled, the appointee humbly takes his or her position and begins handling legal disputes that are typically free of any political content. Do you care how the Minnesota federal courts decide random breach of contract suits? Likely not, unless you're personally involved. But you do likely want the disputes handled properly.
An appointment system, free of nasty election politics, favors a quiet, neutral and independent judiciary, which is essential for public confidence in justice. The downsides are that work performance can vary over a lifetime, and federal courts are largely left to have to police their own performance. This is in marked contrast to legislators who are regularly turned out of office for policy or performance reasons. There are bad judicial eggs occasionally and the U.S. Constitution provides for impeachment. Thankfully, this rarely occurs - mostly because judges tend to behave themselves!
The U.S. Magistrate judge system provides another good model for balancing the need for qualified candidates with judicial independence. U.S. Magistrate Judges were a creation of Congress under Article I of the Constitution to relieve some of the occasionally severe backlog in the federal court system. Magistrate Judges in Minnesota are appointed by the local District Court for fixed terms - with the input of a local merit advisory panel of attorneys. Persons can apply for the positions openly, and the process typically produces high-quality judges - again free of any political contest or election.
And now on to Minnesota state court judicial selection and the current controversy. Being a populist state, Minnesota requires judicial elections. The Governor, however, may appoint persons to judgeships that become open in between terms (whether through retirement or death). In actuality, most judges in Minnesota get on the bench initially through appointment because most judges leave before the end of their term. This is largely a function of custom. The Commission on Judicial Selection then handles applications for appointment and makes recommendations to the Governor.
Nonetheless, all Minnesota judges, whether initially appointed or elected have to eventually stand for election, which can be contested. While few judges are turned out in these elections, which happen every six years, the people have a direct say in who gets to decide civil and criminal disputes. Incumbents are typically re-elected because really there's no reason to move them out. They're not public figures regularly clashing with opponents on matters of social controversy. Rather, they're doing their job of processing and disposing of the 1000s of lawsuits, criminal proceedings, family court spats and other matters requiring calm and impartial intervention.
So what's the problem? Some have tried to push judicial elections in Minnesota in the direction of partisanship, campaign promises and big money. Recall the Wersal case to the Supreme Court. Full-fight elections would be a bad way to go. The beauty of the impartial court system is that when and if we show up there we will get a fair hearing from someone who has not already announced their position on certain issues. Compare this to legislative elections where that's exactly what we want.
In response to the increased conflict in judicial elections, there are current efforts to move Minnesota to a retention election system. All candidates would be appointed by the Governor and all candidates would be subject to periodic retention elections. The public would get to vote yea or nay on keeping the judge. If a majority votes nay, the Governor would then need to pick a new candidate. This system would preserve public input, but would keep the current relative low profile of judicial elections. Whether this method goes forward should be a matter of clear and open public discourse, though it seems a sensible compromise. One thing does seem clear though: expensive, partisan and bitter judicial elections will do nothing to promote public confidence in the quiet branch. That's not the Minnesota way.