Last fall, when the U.S. Court of Appeals for the Federal Circuit took a look, en banc, at the Patent and Trademark Office’s rejection of Bernard Bilski’s application for a patent on a method to hedge risk in commodities trading, Bilski was represented by The Webb Law Firm, a little-known Pittsburgh shop. Bilski lost in a landmark ruling that significantly tightened the standards for so-called business methods patents. But he didn’t give up. He brought in new lawyers from the Washington, D.C., IP powerhouse Finnegan, Henderson, Farabow, Garrett & Dunner and petitioned the U.S. Supreme Court to hear his case.
On Monday, Bilski and his new lead counsel, Finnegan partner J. Michael Jakes, learned that the high court had granted their petition for certiorari. (Akin Gump’s justly celebrated Scotus Blog has links to all the Bilski documents, including the Supreme Court’s order, the Federal Circuit ruling, and briefs from the petitioner, respondent, and amici.) The case, Bilski v. Doll, will center on whether business methods–intangible processes and techniques–are eligible for patents if they’re not tied to particular machines or apparatuses and don’t transform an article into a new state or thing. Here’s Incisive Media Supreme Court correspondent Tony Mauro on the Court’s grant of certiorari and here’s Joe Mullin of IP Law & Business on hints various justices have dropped on how they’re likely to rule.
It’s a big deal for the Supreme Court to grant certiorari on a patent case decided by the Federal Circuit, given the Federal Circuit’s experience and expertise in patent law. If you’re interested in the case, the article linked above is thorough and entertaining.
The news gives us an opportunity to talk about the most important thing a Supreme Court Justice does: agree or disagree to grant the writ of certiorari.
These days, after the Judiciary Act of 1891 (the "Evarts Act"), which created the Federal Circuit Courts of Appeal, and the Judiciary Act of 1925 (the "Certiorari Act"), which exercised Congress’ constitutional power to control the flow of appeals, the only cases with a right to be heard in the Supreme Court are those specified by the US Constitution as within the "original jurisdiction" of the Court:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.
That is to say, these rare cases can be filed directly with the Supreme Court. Congress further required (by calling it "exclusive" jurisdiction) disputes between States be filed with the Supreme Court.
Thus, for the vast majority of cases, the parties must first complete all of their appeals through state or federal appellate courts, after which they file a "writ of certiorari" with the Supreme Court requesting the Court hear their case. About 8,000 of these writs are filed every year. The Supreme Court grants (through a vote of at least four justices in favor) about 1 or 2% of them.
Why is this so important? Of course, a Supreme Court decision is always a big deal, affecting the livelihood and liberty of millions of people.
But there’s another reason, too, one that goes to the heart of debates about "judicial temperament:" the law of unintended consequences.
Just as the best-laid plans of mice and men go oft’ astray, so too do Supreme Court decisions:
Appellate judges who don’t first serve as trial judges are prone to stupid decisions. Not because the judges themselves are stupid, of course, but because they literally don’t know what they’re doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite ‘workable’."
After three years, that test has come to mean something different in every state – literally, without exaggeration, different in each of the 50 states. It produces contradictory results on a daily basis. It’s become a constitutional Rorschach test, revealing judges’ biases with hi-res fidelity.
So was Scalia lying? Of course not. How could he have known enough to be able to lie about what he was doing? He’s never been a trial judge, never practiced criminal law, and hasn’t practiced any kind of law since 1967. He was just guessing.
Since these days actual ideology is off the table in Supreme Court confirmation hearings (everyone claims they don’t want to "prejudge" the issue (PDF), even to the extent of neither agreeing nor disagreeing with existing case law), we should at least examining when, how and why a potential Justice would grant the writ.