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April 17, 2019


I do not think that the Supreme Court will agree that the stratagem of frank abrogation of the judicial exceptions is "within Congress's purview." Members of the Court have indicated since TSR that the policies it has imposed are *constitutionally* required -- and therefore outside Congress's purview to alter, as it has found in so many other areas.

I applaud any effort to rein in the current Court. But I fear the only way to return some sensibility to the Court is to change who or how many sit on the Court.

I have to vehemently disagree with the statement in the article of:

"This is consistent with their role in our system of government."

For every suggestion of propriety of the Court action, there are at least three counters that show Constitutional INFIRMITY in their actions.

...and I would further add that IF there is an actual concern that the law (as opposed to a patent granted under the law) did pose a Constitutional problem, then the Court's action is constrained to a few methods (including throwing the law out).

The Court HAS NO LEGITIMATE authority to rewrite the law (under the guise of "exception" or otherwise) in the realm of statutory law that is patent law.

As is evident from these comments, reasonable people can differ. Unfortunately the Supreme Court will have the last word (absent amending the Constitution, which won’t happen over a patent question). The Court is not final because it is infallible but rather it is infallible because it is final. And I don’t ever see getting a bunch of patent lawyers on the Court, which may be the only way to bring sanity to this area of the law.

Thanks for the comments

"Unfortunately the Supreme Court will have the last word (absent amending the Constitution...)."

Hm, I expect that you are correct that the Court *will* have the last word. I am not sure that it will require a constitutional amendment to avoid the Court undoing Congress' efforts to clean up the Mayo mess. A mere statutory amendment to the judiciary act to remove patent appeals from the Court's certiorari or mandamus jurisdiction would equally well solve the problem.

Meanwhile, I am not sure that we need actually worry about this Court opposing Congress here. Only three current justices joined Justice Stevens Bilski concurrence, which tried to ground the so-called "judicial exceptions" in the doctrine of constitutional avoidance. Presumably, then, four of the remaining justices think that the "judicial exceptions" are *not* a matter of constitutional necessity. If even one of the two Trump-appointed justices agree with that four judge bloc, that would be enough to sustain Congressional action to narrow the scope of "judicial exceptions." I like those odds.

There is always the legitimate power of Congress to employ jurisdiction stripping of the non-original jurisdiction of patent appeals and REMOVE the Supreme Court from its “perch.”

Marbury may be satisfied with a new (and reset - due to the already felt effects of Supreme Court ‘simian training’ on the CAFC) Article III Court.

Knowles restatement of Section 101 on IPWatchdog is the best I've seen. Short, to the point, and NO EXCEPTIONS.

"Presumably, then, four of the remaining justices think that the 'judicial exceptions' are *not* a matter of constitutional necessity."

Whoops, my math is wrong. There are three justices who have joined the Court since Bilski, not two. In other words, there is presumably a three-justice bloc who consider the "judicial exceptions" to be a matter of constitutional necessity, and three who do not. We need two of the three newbies to side with the not-constitutional-requirement reading of the "judicial exceptions" in order for the Court to sustain a Congressional cabining of the "judicial exceptions." I still like those odds.

Mr. DeLassus,

Let's keep in mind that one of those new Justices has ALREADY laid down not one but two sharp implements that may be fashioned together to cut through the Gordian Knot created by the Supreme Court itself in its meddling into rewriting the statutory law that is patent law, specifically the patent law of 35 USC 101 (which IS - and not any part of the Constitution - at the focal point here).

Sharp implement one: the holding in SCHEIN.
Sharp implement two: the oral argument in California Tax Board v. Hyatt.

What we all SHOULD be emphasizing (so that the Court hears this loudly and clearly), is that both of these sharp implements are directly on point [sic] to what the Court has done, and that not only the other courts (as reflected in SEVERAL views expressed by the CAFC), but also the Executive Branch (as directly expressed by Director Iancu) and now the Legislative Branch - EACH AND ALL - are pointing out that the Court is to blame for the mess.

Let's make it a necessity for the Court to save face by having IT apply the Kavanaugh Scissors.

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