"True change in this area really is something where the Court can only do so much. The definitions of patents in general are determined by Congress and its laws."

Sorry, but this is just completely wrong. The law regarding patentable subject matter is almost entirely judge-made. There are broad categories of inventions in software, medicine, business methods, and elsewhere that clearly were not eligible for patent protection in 1980 and are eligible for patent protection under recent court decisions. This didn't change because Congress passed new legislation. It changed because the courts (primarily the Federal Circuit) changed its mind. Given that fact, it makes sense to criticize the courts for continuing to expand the bounds of patentable subject matter, no?

To some extent. But if you give so much latitude to judges, you're asking for complications. Unfortunately, things like obviousness and originality are not clear cut. If we want limits per se, I think Congress is the place to implement them, not the courts.

That said, it's worth asking whether the courts are actually expanding the bounds of patentable subject matter, or simply upholding the breadth of the existing laws. It doesn't seem like this is a case where they could expand it—that would involve overturning precedent. If they aren't overturning precedent, they're simply saying “yep, the law is in fact this broad”. I'm not super-well-versed in the details of the case, however.

"It doesn't seem like this is a case where they could expand it—that would involve overturning precedent."

Which precedent would that be?

That's precisely my point, it doesn't seem like there is precedent. For it to be an expansion, there would have to be a precedent that limits it that they'd be overturning. Otherwise, they're just confirming where the “edges” are.

Exactly, that's why it reached the supreme court. The US has a COMMON LAW system. That means that this case will be applied to further cases in order to determine what the common punishment should be. The supreme court sets supreme precedent.

So everything is patentable and it's judicial activism for the Supreme Court to rule that something is unpatentable? Why do you assume it works that way and not the other way around?

At no point have I used the word judicial activism, nor will you ever hear me use it, since judicial activism is code for "judges doing their job". They can, if they see it in the law, set limits on patents. If there is nothing in the law supporting such limits, they would be hard pressed to add them randomly.

I was, unfortunately, being a bit pedantic earlier and nitpicking your terminology (expanding vs actually interpreting some initial limits) instead of debating your actual point; I apologize for that.

To add to your point about the justices, Chief Justice Roberts is on the record for saying that it is not unusual for him to go through 20-25 drafts before he signs off his opinion on a case. You can watch him saying that here: http://www.c-spanvideo.org/program/286078-1

His says this around 42:45 min into the video.

The article is certainly biased. That's fine, it reads as an editorial and readers here can digest it accordingly.

Your feelings on SCofUS seem a bit ideal to me. My opinion is that possibly every case the supreme court hears is an act of judicial activism, as they only hear the cases they want and there is plenty of detail available to the court by both parties prior to deciding whether to hear a case or not. In many cases, we can predict how the vote will turn out. These are political appointments. They are lifetime ones, but a justice has to serve a career towing the party line in order to make the short list.

My feelings may be a bit ideal, though again, reading decisions makes it apparent both how intelligent these people are and how their “wrong” decisions are still very well-justified. However, I think yours are perhaps too cynical.

For example, David Souter was appointed by Bush Sr and ended up being one of the most liberal justices on the court. Harold Blackmun, author of the majority decision in Roe v Wade, was appointed by Nixon. Ford appointed John Paul Stevens. Breyer and Ruth Bader Ginsburg, on the other hand, were both appointed by Clinton.

So the political leanings are not as clear-cut as you make them out to be. And there is significantly reduced pressure to toe any sort of party line after you are named to the court—that's precisely why the appointments are for life. Moreover, in order to get confirmed, it's tough for a justice to simply toe the party line. Confirmation is a 2/3 deal in the Senate, and it's extremely rare for one wing or the other to have 2/3 of the seats there. No one takes Supreme Court appointments lightly.

Even so, I think I've tempered for idealism. Idealism would say they'd come up with a perfect, fair decision, every time. I'm just saying they're not oblivious. They may have a different interpretation, they may not have a complete technical understanding, but these are not people who are oblivious. They're smart, they know how law works, and this is ultimately a debate about law, as it should be in a court. Yes, there is room for interpretation, but these are not fools, and I feel like the characterization of the Supreme Court as “oblivious” is a bit excessive in that sense.

When I tried to submit this story, I cut the word "oblivious" out of the title. Of course, someone else had beaten me, so it counted as an upvote for this copy, which uses the original title.

Anyhow, you're right that they will read the amicus briefs. But I do wish they had given them more consideration. While it's true that you can't really gauge how they'll rule from the questioning in general, statements about how they "all agree" that it would be patentable if they'd included a few more numbers are very worrisome. Yes, sometimes they'll harshly question the side they ultimately support, perhaps to see how it fares under scrutiny, but I fear that important points were not disputed at all during that exchange.

"Reading pretty much any Supreme Court decision will show you how intelligent these nine justices are."

Not saying they aren't intelligent. But they might be intelligent enough to have their wives take hundreds of thousands of dollars in lobbying money directly related to the cases before them and get away with it. So, not their intelligence I'm worried about. Its their ethics and morality.

Well, a few thoughts. I haven't looked into this in detail, of course, but some general ones: - In this particular case, the issue in question was that one justice's wife (Justice Breyer) owned stock in Nestlé, which acquired Prometheus Laboratories, one of the parties in the case, this year. This fact seems to have come out during the case, and the justice's wife ultimately sold her stock before the case began. Nestlé has pretty powerful brand recognition, so it seems silly to read foul play in that particular interaction. Asking justices to never engage in stock trade and, worse, never allow their families to do so, just in case a situation like this should arise, would be somewhat foolish. We rely instead on disclosure of interests and the ability to recuse oneself if a justice chooses not to clear a conflict of interest. - I don't know of too many financial conflicts that have arisen in the court, particularly recently, that haven't been solved either by something like the above or by recusal. - It's possible you're referring to the issues regarding the healthcare law and the fact that Justice Thomas's wife has campaigned against it. If so, I'd like to see the evidence that she has taken “hundreds of thousands of dollars in lobbying money”. I'm not saying it hasn't happened, just that I haven't seen anyone mention money changing hands—people are mentioning a potential conflict of interest that she's advocating against it, but that's a different matter entirely.