Reining In Abstract Patents

Over at Ars Technica, I’ve got an in-depth discussion of In Re Bilski, an important case that was argued before the U.S. Court of Appeals for the Federal Circuit last week. The Federal Circuit has jurisdiction over most patent appeals and, until recently, their decisions were rarely reviewed by the Supreme Court, making them effectively the final authority on patent issues. And unfortunately, they’ve made quite a mess of things, departing dramatically from Supreme Court patents and allowing patents on broad, abstract concepts (including software, which I wrote about last year). The result has been an explosion of low-quality patents and frivolous litigation:

Amazon’s much-derided one-click patent was approved the year after the decision. Patent litigation in the software industry has exploded with firms facing lawsuits over patents covering extremely broad software concepts such as wireless e-mail, web embedding, and converting IP addresses to phone numbers. Technically, these patents cover general purpose computers executing the algorithms described in the patent rather than the algorithms themselves. But because no one executes such algorithms with pen and paper, the net result has been to give the patent holders effective monopolies on the algorithms themselves.

The Federal Circuit has been catching a lot of flack for its patent jurisprudence in recent years, and they’ve showed an increased interest in revisiting past precedents. As I discussed in a Cato podcast last week, In Re Bilski concerns a patent that was rejected by the USPTO for being too abstract. In its call for amicus briefs in the case, the Federal Circuit explicitly asked for opinions on whether it should revisit its key rulings on abstract patents from the 1990s.

Unfortunately, the oral arguments suggest that the Federal Circuit is unlikely to abandon its dubious experiment with allowing patents on software and other abstract concepts. At best, I think we can expect the court to tinker at the edges, restricting the most egregiously abstract patents.

I’m more optimistic about the Supreme Court, which has shown a renewed interest in patent law in recent years and has shown no compunctions about overturning the Federal Circuit’s patent decisions. At least three Supreme Court justices (Scalia, Breyer, and Stevens) have raised questions about the patentability of software, suggesting that there may be some skepticism from the Supremes on this issue. If the case gets appealed to the Supreme Court, it will be another opportunity to correct a Federal Circuit that has not done a good job of respecting Supreme Court patent precedents.

SCOCA Overturns Gay Banns Ban

As many expected, the California Supreme Court has overturned that state’s ban on gay marriage. So many expected it, in fact, that opponents have already submitted more than a million signatures through California’s initiative process to put an anti-gay-marriage amendment on the ballot this fall.

I wonder if opponents of gay marriage in California will rely on the same arguments as did the Washington Supreme Court

Educational Freedom Advances in South-East

Having so recently blogged about the expansion of Florida’s k-12 scholarship tax credit program, I’m delighted to be able to add that Georgia governor Sonny Perdue yesterday signed a similar program into law in his own state. Meanwhile, in Louisiana, a modest New Orleans voucher program was passed out of the House yesterday by a nearly 3 to 2 majority (a corresponding bill has already passed out of Senate committee and awaits a floor vote).

While none of these programs is yet big enough to create significant market forces, the growth of the Florida program and the bi-partisan support that it and the New Orleans program are enjoying are promising signs.

When Would McCain Intervene?

Matt Bai has a writeup in this Sunday’s NYTimes Magazine of McCain’s vision on foreign policy. Buckle up:

McCain considers national values, and not strategic interests, to be the guiding force in foreign policy. America exists, in McCain’s view, not simply to safeguard the prosperity and safety of those who live in it but also to spread democratic values and human rights to other parts of the planet….

[…]

[A]s we talked, I tried to draw out of him some template for knowing when military intervention made sense — an answer, essentially, to the question that has plagued policy makers confronting international crises for the last 20 years. McCain has said that the invasion of Iraq was justified, even absent the weapons of mass destruction he believed were there, because of Hussein’s affront to basic human values. Why then, I asked McCain, shouldn’t we go into Zimbabwe, where, according to that morning’s paper, allies of the despotic president, Robert Mugabe, were rounding up his political opponents and preparing to subvert the results of the country’s recent national election? How about sending soldiers into Myanmar, formerly Burma, where Aung San Suu Kyi remained under house arrest by a military junta?

“I think in the case of Zimbabwe, it’s because of our history in Africa,” McCain said thoughtfully. “Not so much the United States but the Europeans, the colonialist history in Africa. The government of South Africa has obviously not been effective, to say the least, in trying to affect the situation in Zimbabwe, and one reason is that they don’t want to be tarred with the brush of modern colonialism. So that’s a problem I think we will continue to have on the continent of Africa. If you send in Western military forces, then you risk the backlash from the people, from the legacy that was left in Africa because of the era of colonialism.”

The United States faced a similar obstacle in Myanmar, McCain went on, shaking his head sadly. “First of all, you’d have to gauge the opinion of the people over time, whether you’d be greeted as liberators or as occupiers,” McCain said. “I would be concerned about the possibility that if it were mishandled, we might see an insurgent movement.” He talked a bit about Aung San Suu Kyi, whom he called “one of the great figures of the 20th century,” but then wondered aloud if the American public would support a military intervention.

“It goes back to the Vietnam thing,” McCain told me. “I’m just not sure the American people would support a military engagement in Burma, no matter how justified the cause. And I can’t tell you exactly when it would be over. And I can’t tell you exactly what the reaction of the people there would be.”

Most American politicians, of course, would immediately dismiss the idea of sending the military into Zimbabwe or Myanmar as tangential to American interests and therefore impossible to justify. McCain didn’t make this argument. He seemed to start from a default position that moral reasons alone could justify the use of American force, and from there he considered the reasons it might not be feasible to do so. In other words, to paraphrase Robert Kennedy, while most politicians looked at injustice in a foreign land and asked, “Why intervene?” McCain seemed to look at that same injustice and ask himself, “Why not?”

Thankfully, though, the Washington Post is reporting that McCain apparently has a secret plan to win the war in Iraq by 2013.

BloggingHeads: Brownlee vs. Cannon

If you’re like most Cato@Liberty readers, you often ask yourself, “Self, what kind of artwork does Michael Cannon have on the walls of his office?” Thanks to the folks at bloggingheads.tv, not only can you find the answer, but you can learn an awful lot about medicine, health insurance, and health care reform. 

This week, BloggingHeads hosted a discussion between New America Foundation senior fellow Shannon Brownlee and me.  Brownlee is the author of the quite excellent book Overtreated: Why Too Much Medicine Is Making Us Sicker and Poorer.  (Disclaimer: I disagree with many of the conclusions in Overtreated, else we wouldn’t have much to debate.)  Brownlee was kind enough to plug my book, too.

Invade to Aid?

Should we force our way into Burma to aid cyclone victims? Since the May 3 storm, Burma’s military regime has barred most outsiders from delivering supplies and medical relief. The regime is accepting aid shipments, it appears, but lacks the capacity and maybe the will to efficiently deliver them. With people still dying – estimates so far range roughly from 40,000 to 130,000 – and another storm possibly on the way, several Western nations may push the UN Security Council to evoke the “responsibility to protect,” and authorize the use of military force to deliver the aid. National positions are still solidifying, but it appears that France, the UK, the Netherlands, Germany, maybe Canada, and even Pakistan endorse this tact. EU Foreign Policy Chief Javier Solana, for one, is willing to do “whatever is necessary to help the people who are suffering” in Burma.

Less importantly, Robert Kaplan takes up the call in today’s New York Times, pointing out that US Naval forces now exercising off Thailand could escort in an invasion force. Kaplan doesn’t quite come out and call for the use of force but seems to be leaning that way, as is his wont.

Kaplan does concede that things could get messy. Even if the war were quick, the government could fall, and then the invaders might wind up trying to reorganize the country, which is fraught by ethnic tensions. Kaplan is cautiously optimistic about this endeavor – he thinks the fact that Burma has suffered insurgencies for 60 years is conducive to their settlement rather than indicative of their tenacity. Personally, I think the last thing the United States needs is another occupation to manage. We should wish the Europeans luck if they’re game, but we shouldn’t encourage them.

You could argue that the best way to get the junta to open Burma’s doors is to get legal authority to knock them down. But bluffing may be a bad tactic here. The Burmese military is reputed to be paranoid about invasion. According to the Times, “One of the generals’ most enduring fears is a seaborne invasion by Western powers it refers to as ‘foreign saboteurs.’” Along with the truth of the adage, “just because you’re paranoid doesn’t mean they’re not after you,” this fear indicates that threatening to break in may only cause the Burmese to double their locks. Painful as it is, diplomacy is a better route.

Kindergarten Cop Out

Gov. Arnold Schwarzenegger just released his revised budget proposal. To close the $17.2 billion gap between the spending desired and the revenue growth projected, the governor is recommending securitizing future lottery revenue or increasing the sales tax. As soon as November, pending legislative approval, voters could have the chance to vote for even more state debt. Rejecting the proposed ballot measure would trigger a sales tax increase of 1 cent for up to three years. Schwarzenegger’s budget does keep some of the two percent across-the-board spending cuts the administration called for in January and renews his call for a spending limit and rainy day fund.

Interestingly, in his comments, the finance office director notes that the underlying problem in the state is the tendency to spend one-time revenues on spending increases that continue indefinitely. Unfortunately for Californians, their proposed solution is not to reduce the size of the state government, but to call for a rainy day fund to smooth fluctuations in revenue growth, which will be funded by more debt.

Hopefully, as legislators consider the spending plan for 2008-09, they will take a closer look at reducing spending and enacting a spending limit to address the underlying problem of unsustainable spending growth.