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.
This Memorial Day weekend, did you spend more time thinking about what kind of beer and brats you'd buy for your picnic than about the 1.2 million who have given their lives in uniform? Did the latter even cross your mind?
Yes, the President will be speaking platitudes (truthful) today about the courage and tragedy of those who lost their lives. But, I would wager that most people, while aware that Memorial Day is a federal holiday to commemorate our military dead, are indifferent to the gravitas of this holiday. Setting aside your position on the propriety of more recent armed conflicts (Iraq, Afghanistan, Vietnam), one thing you know for certain: many persons, typically young and working-class, have given their life wearing a U.S. uniform.
How to account then for the fact that this very serious holiday has become little more than the official start of summer? There are several forces at work, and I will try to parse them out.
Americans are Uncomfortable with Mortality
For a country remarkably comfortable with violent movie content and a high murder rate, we are uncomfortable with mortality. If we can avoid it, we do. Thus the proliferation of every possible treatment or surgery on the body to avoid signs of aging. If we are 60, we want to look 40. Memorial Day is a day to deal with the fact that our nation has lost 1.2 million soldiers and sailors acting at our direction (yes, we're a democracy). Since we're uncomfortable with this reality, and our own mortality, we have transitioned Memorial Day into a vapid summer launch celebration.
Americans Don't Like Downers
In a similar vein as the previous example, American are relentlessly optimistic and avoid undue analysis of their actions. We are not a moody people and don't like to dwell on the past, much less a bloody past (except when we re-enact Civil War battles - which we'll then ignore on Memorial Day). It probably would've made sense to have memorial periods after major conflicts and wars (like a 10-year period), give the dead their due and then "bury" that particular war in a proper way. Of course, we would not then have a 3-day weekend for decades. In a strange way, this is a strength - we can avoid replaying bloody history (as in Ireland, Rwanda etc...) by simply forgetting it.
Americans Ignore War Dead if They're Poor
While we enjoy violence as entertainment, our middle and upper middle classes have largely left the dirty business of the battlefield to the children of hard-working folks of rural areas and the inner city. With no draft, we have a regressive military - where the tax of death is meted out in greater quantity on the poor. Since the poor are a downer (see above), we tune out their deaths (like the thousands lost in the Middle East in the last nine years). In World War II and Vietnam, when the draft was still in place, everyone knew someone who had served (both my step-dad and father-in-law served in the Navy) and knew someone who died in war. This maintained a sense of community purpose and sacrifice. With the loss of a heterogeneous military, we have less reason to focus on the tragic aspect of Memorial Day.
War Now Polarizes
In recent decades, it has been more difficult to maintain citizen unity around military action (for better or worse). With the internet, we all have access to information (at least pseudo-information) and routinely reach our own conclusions about whether we should go into a certain war. This discernment started in Vietnam, though the average American then was not an anti-war protestor. With our complex political transitions from 1980 to the present day, partisan politics has smothered traditional patriotism. Our government has been challenged to develop common purpose around something as innocuous as a new national park, much less an endeavor of the scope of war. The political rancor over the "War on Terror," albeit justified, has compromised our ability, or willingness, to deal with the very real tragedy of lost lives and broken families.
All Holidays Drift Toward Oblivion of Meaning
Maybe this is too obvious. We can all complain that our particular pet holidays have become compromised through material culture (Turkey Day, Fireworks Day, Present Day, Egg Day... and the list goes on). In some ways, the holidays that still work are ones with little gravity or historical complexity to begin with - Halloween, Valentine's Day, New Year's Day). We can simply enjoy them and not have to worry about ignoring their real purpose (enjoying them is the purpose!). But to see holidays with religious or historical significance drift into "3-day weekends" and occasions to sell products or intoxicating beverages is a little disheartening.
Perhaps the end was near for Memorial Day in 1968 when Congress changed several federal holidays to the certain Monday of a certain week of the month. We would celebrate the holiday, but only if it gave us a long weekend. Sen. Daniel Inouye of Hawaii, a WWII vet, has tried for years without success to move Memorial Day back to its original May 30th date.
Vesting holidays with substance has become a matter of personal choice - not common social purpose or obligation. When you enjoy your Memorial Day picnic with family, and you should, will you remember the 1.2 million? Balance levity with gravity on this Memorial Day and keep in mind the sacrifice others have made for the safety of our Republic.
In an earlier post, I raised the question “Who are Minnesota’s Radical CEO’s?” Why again does this matter? If we want Minnesota to remain a hub of tech innovation and jobs, we need business leaders who get the connection between business, people and place.
I went searching and found a worthy first Radical CEO: Matt Dornquast of Code 42 Software. Dornquast has built a dynamic and successful Minnesota tech company even through the downturn. And he has an express purpose to help nurture the Minnesota tech ecosystem. This is not just aspiration. He has turned down multiple VC deals that would've required him to move the company out of Minnesota. In this era, that’s radical – and that’s true community vision.
With Radical CEO’s like this, we can maintain and expand our amazing Minnesota innovation culture. Who's next?
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.
In our evolving post-employment culture, there are vigorous debates about what conditions are needed to promote entrepreneurship – quantity of talent; quality of ideas; access to risk capital; culture of innovation; public-private cooperation – and the list goes on. Inevitably, the conversation turns to “How can we be more like Silicon Valley?” - with its abundant and well-publicized startups, venture funds and innovation cheerleaders (Graham, Andreessen, Kawasaki, Bianchini…). This is true even in places that themselves are widely regarded as innovation hubs, like Boston (supposedly left “in the dust” by the Valley).