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July 17, 2019


I remember a day, quite some time ago, when in law school we were learning about the Judicial Power and how the basis of the judicial power was carefully tied to respect for the decisions of the branch.

This tie to respect was based in part on the fact that the judicial branch really does not have its own manner of enforcement (enforcement typically viewed as being a power of the Executive branch, or at a related power (such as the power to tax) of the legislative branch.

The reason for this musing is that the judicial branch itself has made an absolute mess of patent law, and in particular, the patent law of eligibility.

The Athena case is NOT the first time that a number of judges at the Court of Appeals Federal Circuit level have taken an open shot across the bow of what the Supreme Court has (re)written in terms of 35 USC 101, but the clarity here OF THE LACK OF CONSENSUS of what the Supreme Court HAS done really does make the point that the law (rewritten as it has been through the mechanism of Common Law law writing) is truly Void for Vagueness -- among other Constitutional infirmities.

It is beyond a sad state of affairs that no matter one's ultimate view of what types of innovation should or should not be protected by patents, that the actual mechanism of our legal system, the inherent limitations of the Judicial Branch (including ESPECIALLY the Supreme Court), the disregard for the fact that each branch is not above the other two (that we have a checks and balances system) and that the mess we currently have can totally be tracked to "Legislating from the Bench" -- and that the totality of this mess is a necessary indictment against the respectability of the Supreme Court; that ALL of this can be laid at the feet of the Justices of the Bench that simply want patent law to be as they would write it, as opposed to how Congress, the one branch of the government actually designated by the Constitution with authority to write patent law HAS written it.

Viewing the Athena decision in an unfolding historical manner, along with repeated calls from the CAFC, from candidly stark comments of Director Iancu, and from the Tillis Congressional hearings, I truly believe that is law school days of the future, THIS day of the Supreme Court will be looked at in wonder as to how in the world did the Court allow itself to fall to such levels of disrepute.

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