Could The Supreme Court Invalidate Software Patents?
from the in-truth,-it-already-has... dept
Some folks claimed in response that Lee was advocating "judicial activism," and Scalia's hands were tied by the law itself. However, as Lee correctly retorts, the law does not explicitly say software patents are okay. In fact, the Supreme Court has ruled against such patents in the past. It's just that those rulings were a long time ago, and the lower courts (mainly CAFC) have chipped away at that over the past couple decades. Lee points out that in 1972, when the Supreme Court first rejected software patents in Gottschalk v. Benson, it invited Congress to change patent law if Congress intended for software to be patentable. Congress did nothing.
Thus, it seems entirely reasonable that the Supreme Court could point to its earlier rulings (and there are others beyond Benson), and say that software is not patentable -- but that would likely entail greater awareness of why software patents are a massive problem. So... how do we get everyone on the Supreme Court to hear that TAL episode?