My Field Trip To The Supreme Court

I had an incredible experience yesterday.  My friend Phil Weiser, who is now the Deputy Assistant Attorney General at the US Department of Justice, Antitrust Division (I prefer to call him America’s Top Cop on Agriculture) invited me, my partner Jason Mendelson, and my wife Amy Batchelor to attend the Supreme Court Oral Arguments for re Bilski.  A rare tie sighting ensued as a jacket and tie is required to attend.


For those that know about my fervent anti-patent bias with regards to software, Bilski is an important case.  Depending on how the Supreme Court rules, it could open the door for both the invalidation of business method patents as well as begin a serious discussion about the validity of software patents.  One can hope.  So, this wasn’t a random Supreme Court visit, but rather one that is highly relevant to something I’ve spent a lot of time thinking, talking, and writing about.

As you walk up the steps to the Supreme Court, you can’t help but stop and stare.  It was a beautiful day and we just soaked up the sunshine for a few minutes.  We then walked to the side entrance, went through security, and proceeded to the Supreme Court Cafeteria where we met Phil for lunch.  We were all a little nervous which was evident as we struggled to get salads from the salad bar (how hard is it to get lunch?) before sitting down in the relatively small cafeteria.


The Oral Arguments were from 1pm to 2pm so at 12:30 we mobilized.  The process of getting into the Courtroom is tedious, but surprisingly chaotic as they check IDs and accompany people in waves.  But once in, it’s powerful.

Courtroom of the Supreme Court Building

We sat down and waited quietly.  The courtroom was full.  At exactly 1pm, the Justices entered.  They sat, and immediately called the Petitioner (J. Michael Jakes).  Jakes got about thirty seconds into his oral argument when Justice Scalia jumped in with a question.  A short attempt at an answer by Jakes followed by a question by Breyer.  Another short answer and then a question by Ginsburg.  Then Breyer. Then Sotomayor.  Within five minutes I was stunned at the high level of understanding the Justices had in this particular case, the insightfulness of their questions, and their level of participation.

Breyer, Roberts, Scalia, and Sotomayor continued to question the petitioner for the next five minutes.  Their tone was aggressive – bordering on hostile – but never quite crossing the line.  Jakes kept his cool although he didn’t have strong responses to much of anything (at least from my perspective).  While I was biased against the Petitioner and could have heard what I wanted to hear, it sounded to me like the Justices were leaning strongly against business method patents and trying to understand how they could possibly be valid.

The Petitioner abruptly finished (reserving the balance of his time) and the Respondent (Malcolm L. Stewart) began.  It was a similar drill – the Petitioner got started and Justice Alito jumped in with a question.  A short answer followed by Sotomayor.  This continued for about 30 minutes.  Several times the idea of software came up.  Stewart steered the conversation away from this each time or – in some cases – refused to address the question.  This was frustrating to me as I thought the Justices were throwing him fat pitches to link software in with business methods as things that shouldn’t be patent eligible.  At some point it became clear that Stewart had a clear charge to keep software out of it as he went so far as to say that the government had argued against having the Supreme Court hear this case as there were difficult problems in software innovation that hadn’t yet been worked through.  Near the end, the State Street Bank case came up (not surprisingly) although in my opinion Stewart really fumbled his response.

At the end, the Petitioner got a four minute rebuttal.  At 1:55 Chief Justice Roberts promptly stated “Thank you, Counsel.  The case is submitted.”  The justices then rose and left the courtroom.  A minute later everyone else left.

We quickly said our goodbyes to Phil (he had to get back to work), wandered around for a few minutes looking for our car, and then headed to Ronald Reagan Washington National Airport to head back to Colorado.

When we landed, the transcript of the Oral Argument was up. And John Schwartz, the NY Times reporter who we stood behind in the security line (he’s got a cool black skull wallet), had his article up titled Justices Hear Patent Case on Protecting the Abstract. The web is an amazing thing.

In short, the experience was awesome.  I’m rarely speechless but as I walked out of the Supreme Court afterwards I realized I had nothing to say.

  • Fascinating write-up, Brad.

    I'd be interested in reading more about your opposition to business method patents. Have you posted on that before, and if not, could you?

    Thanks, and keep up the great work!
    – Josh

  • Thanks, Brad. Looking forward to some great reading.

  • Herb


    I attended the Supreme Court twice in recent memory. Once to see my dad sworn in as an honorary person who could present before the court (sorry don't know the official way to say it). Pretty amazing seeing your own dad in the chambers. Then, another time I was there for the arguments for what is commonly known as Megan's Law (rights of sex offenders). It went very much like how you described: interruptions, amazingly pointed questions. Like you, I left both times in total awe. I'm not so proud of some parts of how our government handles itself, but the highest court in the land truly operates at a level above all others.

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  • This is definitely on my list of things to do before I die.

  • I also feel incredibly strong about software patents and see them as anti-innovation, anti-startup, and anti-consumer. Was sorry to hear that the discussion was being steered away from tackling software patents. Fingers crossed.

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  • Admittedly, I’m on the side of the little guy when it comes to software patents. Too often, large organizations have patented or purchased patents for scads of technologies that never make it to market. While that might be an argument to get rid of them, it is also an argument for the little guy who also has a chance to protect their innovation and find fringy or disruptive technology gaps suitable for innovation.
    If someone extrapolates those very notions and uses the same bit-pushing process for a business, so be it. It’s not software (yet.)

    The notion of the little guy and their ability to disrupt larger organizations is what makes capitalism a wonderful thing. Would it be a level playing field without software patents? I don’t think so. Would there be more innovation or more software released as a result of removing patent protection? That answer is intuitively obvious and even Keynesian in a way.

    That this has made it to the Supreme Court reinforces the complexity of this entire notion. (I’m glad you’re involved in this and thanks for the post.)

    • There has been some great writing in the past few years, including the books “Math You Can’t Use” and “Patent Failure” which talk clearly about the economic dynamics around patenting software.  Both come down squarely on the side of “no patents” = “more innovation” and “more economic benefit to be distributed around the system.”  It’s pretty interesting to really go deep into this.

  • Hey Brad,

    Nice suit. Never thought I'd see that.

    I've been following the changes to patent law closely for the last few years. As we were starting up ReTel, trying to navigate that mess was far more trouble than it could be worth. It definitely stifles innovation. I don't see how, at least in software, how it helps anything.

    It'll be interesting to see how it ends.

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  • Bill Mosby

    Good to hear how competent the Justices are. Given the volume of work they do, they get a lot of practice.

  • Ben K

    The Government's efforts to steer away from software and toward a "technical arts test" is easy to explain: Dave Kappos, the new head of the Patent Office, is the former head of IBM's intellectual property division. His (and, by crazy coincidence, IBM's) position is that anything in the technical arts (e.g., anything IBM does) should be patentable, and anything outside the technical arts, like business methods, should not be. This is the line that the Government presented in the case. This line of argument was basically absent in Government filings about Bilski pre-appointment of Kappos.

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  • Having business method & software patents, we see them as benchmarks, not firewalls to innovation..

    • Is there a particular article on your blog that you are pointing to?  I took a look and didn’t see anything.

  • Oops :-/ I have updated my profile on my blog to better reflect our experience with patents for our business method and technology for both our virtual call center (Willow, now and rapid order fulfillment ( My partner, Richard Cherry, also has numerous other patents for products used worldwide (plastic shipping containers, food & beverage processing equipment, etc.) all of which stemmed from solving seemingly insurmountable challenges for clients.

  • Hail the justices of today such as those in Manchester

  • So, some tip about this issue are welcome and really sorry if my question is very simple. Thanks in advance
    Thanks again for your help. Your site contain a many useful information.

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