A day hardly passes when I see yet another example of scientism run amok. Case in point: in the ever-evolving world of non-objective patent law, the Supreme Court recently dismissed a pending patent case, Metabolite. Summary/report here. In a dissent, three justices, led by Justice Breyer, “would have heard the case and would have found the patent invalid”. These Justices also “took shots at the State Street decision that started the business method craze”–i.e., a decision a few years back that opened the door to patents covering methods of doing business.
Greg Aharonian’s PatNews reported this exchange concerning the case:
I recently asked someone very long involved and experienced in patent law and politics about what I think is a troubling aspect of the recent Metabolite decision:
A question, if you have the time. Hal Wegner is all excited about the Metabolite dissent as portending an attack on State Street. Part of the dissent’s attack on State Street was to cite the idiotic Gottschalk decision. I am troubled both by this citation (Gottschalk was very bad science) and the citation of Pollack’s idiotic anti-business method law review article (also bad science). Should the patent world be concerned that the Supremes are relying on such bad science while hinting at an attack on State Street?
Short answer: YES. The reliance in Metabolite on old case law, very old in the context of where we have come technologically and in the importance of strong IP to the US and developed world’s economies, is potentially very bad. The selective citations to academic articles, almost all of which are on the “anti-IP” side of the ledger, often wholly unsupported by any or at least-critically reviewed and/or reviewable empirical data, and which usually cite each other for support of their predilictions, is even worse.
To me, these troubling Metabolite comments question the Supreme Court’s competence in science (at least, not as bad as Congress’ hostility to science thanks to religious and corporate wackos). This is important because “obviousness”, to be decided in KSR, is mostly an issue of scientific differences, i.e., how obvious one invention is from another is pretty much a question of the distance in some conceptual space of the science of the invention. You can’t measure the distance between two software ideas unless you have some familarity with software science concepts. Yet if the Supremes are playing games with science in general (frankly, anyone positiviely citing Gottschalk nowadays should be disbarred as an idiot), they are in no position to rule on much more subtle issues such as scientific distance metrics for assessing obviousness.
Here, as usual, patent attorneys and engineers make the mistake of confusing fact with policy, and with assuming one can use empirical tests to “settle” policy questions.
The expert he cites says “The reliance in Metabolite on old case law, very old in the context of where we have come technologically and in the importance of strong IP to the US and developed world’s economies, is potentially very bad.”
Of course, this supposed expert he can have this opinion, he can favor a policy of having IP laws, but it’s not “established scientifically”. It’s just a policy view.
He goes on: “The selective citations to academic articles, almost all of which are on the “anti-IP” side of the ledger, often wholly unsupported by any or at least-critically reviewed and/or reviewable empirical data, and which usually cite each other for support of their predilictions, is even worse.”
The problem here is that (a) he assumes that the “debate” has to be settled on empirical grounds–but this is the scientistic way of thinking, and by no means uncontroversial. There are some of us who are actually not utilitarians; who actually have moral principles instead of a pseudo-scientific believe that you can boil all normative questions down to ounces and tests. And (b) he accuses the anti-IP people of not having empirical data to back up their views, while the pro-IP people stand more guilty of this: as IP is a legislative intervention in the free market and its propoents claim that it is in fact justified because it generates wealth and is on net “worth it,” the burden of proof is on the side of IP proponents to show “empirically” that patents do in fact generate “more” value than it costs society (see my article “There’s No Such Thing as a Free Patent“). There is, in fact, to my knowledge, *no* conclusive evidence showing that the purported benefits of the patent system–extra innovation induced by the potential to profit from a patent; earlier-than-otherwise public disclosure of innovation–exceeds the significant and undeniable costs of the patent system. The few studies I’ve seen seem to be neutral, or inconclusive, or argue that the costs probably exceed the benefits. If Aharonian’s expert, or anyone else, is aware of any studies that clearly tally up the costs, and benefits, of the patent system, and find a net positive, I’d love to see it. Is the patent system “worth it”? Who knows? Apparently no one does. It seems to follow that we patent attorneys ought not pretend that we do. Or, as Wittgenstein said “What we cannot speak of, we must pass over in silence.”