Although the Supreme Court deserves our respect, a substantial number of practicing patent attorneys believe the Court fails to understand the difference between patent law and other areas of law. Specifically, that lower court efforts to develop creative but equitable formulas for arriving at definitive answers are prosaic and not sufficiently far reaching. Perhaps it is the science and engineering background of patent attorneys that creates the frustration.
When we interview new patent attorneys we almost always see their first year law school test scores were below that of their undergraduate transcripts. The explanation is always the same…..”I though my law school professor was looking for the correct answer.” This is expected from a student that rarely wrote essays or explored the various sides to an argument. In science and engineering, there is typically only one correct answer. However, in law school the professor is looking for a student that can spot every legal issue that can arise in a fact pattern.
Spotting various legal issues is a valuable skill for a lawyer for several reasons. First, a lawyer may represent either side a fact pattern and doesn’t always get to choose the side most likely to prevail. Second, knowing what issues the other side will bring up helps the attorney better prepare against his or her adversary. That is fine for an attorney, but we want to the Court to give us guidance on how to resolve controversies. When the Court is unclear, we cannot efficiently administer justice on behalf of our clients.
The Court has taken an active role in shaping patent law over the law first years. It has agreed to take up the controversial case of in re Bilski which will unquestionably impact the strength or weakness of software and business method patents. There are interests on both sides of Bilski and some will win and some will lose. However, we don’t need to be told by the Court to use “common sense” in our analysis. If the Court takes this important case and gives us only adages then rest assured, everyone will lose.