My Day at the Supreme Court

Thanks to our friend Phil Weiser, who is at the US Department of Justice for the next couple of years, Brad, Amy and I were invited to watch the Bilski oral argument at the Supreme Court.  If you don’t believe me, here is a picture of Brad and I on the steps of the courthouse (wearing suits, no less). 

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Having been a lawyer, I’ve always held deep opinions about the Supreme Court, many of which were obliterated today.  I’d always imagined that the justices would be old, out of touch, disengaged, dry and not be able to really explore the weight of the issues in oral arguments given only one hour is allocated per hearing. 

If we go to the scorecard:

Old: yep

Out of touch: definitely not

Disengaged: absolute not, so long as you don’t count Justice Thomas who looked like he’d rather be elsewhere and never said anything

Dry: no:  Justic Breyer was cracking jokes, but Chief Justice Roberts is not exactly a humorless judge

Exploration: perhaps most surprisingly, an hour was more than enough

Final Tally:  Jason’s Preconceived Notions: 1, New Found Opinions: 4

For those of you who don’t know, the Bilski argument addressed whether or not business methods are patentable.  Anyone who follows my blog knows that I staunchly favor the abolishment of business method patents and also feel that most software patents are contrary to proper innovation policy.  The judges allowed the Bilski camp about 2 minutes of uninterrupted argument and then launched directly into questioning.  What was impressive was how direct and well prepared they were as they explored the key elements of the issues surrounding business method patents.

To me, it was apparent that the justices had grave concerns about the validity of these types of patents.  In fact, when the rebuttal from the government came (on the side of getting rid of business method patents), the justices pushed him on why software should be patentable.  The lawyer representing them (Malcolm Stewart) ducked and weaved as best as he could, but it felt like the court would have thrown out both business method patents AND software if he had stood up and said “they should go too, your honor.”

My bet is that business method patents are gone.  What will be very interesting will be their language regarding software patents, as software validity wasn’t part of the case, but clearly on the justices’ minds.

All in all, I was massively impressed with the mental horsepower of the court and their ability to parse a very complicated subject in a short amount of time.  Justice Breyer stood out as really engaged, but they all (but Thomas on this particular day) were impressive individuals.  Thanks Phil.  This was really a treat. 

One item to note:  if you get the chance to go to the Supreme Court, their cafe is mostly forgettable.  Don’t get the French dressing.  Way too much sugar.  (Picture of Phil and I below at the cafe).

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  • Nice. Glad to see you, Brad and Amy were able to be there. Kudos to Phil for getting you all ringside seats. And kudos to you for laying out your preconceived notions and the surprising outcome when your final "votes" were in. Had you and Brad donned sun glasses, you'd have passed for the Blues Brothers.

    A friend of mine from law school clerked for Breyer (and also for David Souter). He's the only person I know who had the good fortune to have clerked for two living members of the Supremes.

    It seems highly unlikely that software patents will be addressed in the Court's final decision, but I'm sure we will all read the opinion – when the decision issues – with an eager eye toward what the Court might be expected to do in a case that is focused on software rather than business methods patents.

    • Tom, thanks for such a thoughtful comment.  Breyer was absolutely incredible today.  I sat in awe of his intellect and humor.  I think that someone will bring up software patents in their opinion, but probably not to the extent that I’d like.  But the body language of the court was really promising today.

  • Cookie Monster

    Jason, sorry to say but you look at home in that suit and very much like a lawyer (is that a requirement to go to law school?). Where as Brad, on the other hand, not so much.

    • It took me 3 tries to get the tie right.  It’s not like riding a bike, for sure

  • Seriously, who is that guy on your left?

  • Bard Fled.  Little know VC in Boulder. 

    • So, the lyric poet who ran away to invest his money?

  • exactly

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