Write Your Own Laws With Patents

Billy the Mountain writes "At Scientific American's website there's an short and interesting article describing how the lack of scrutiny in the patent department enables ordinary citizens to manipulate the system with the effect of writing new laws. (Meanwhile, I'm busy patenting taxation and will be unable to answer any emails this week. Oh, and you can thank me later! :)"

Comments

Re:Comments?

[Lionel Hutts]

There's another possible explanation: all of /.'s readers have suddenly become sophisticated legal analysts and realize that the article makes no sense.

We all realize that our present patent law is questionable from a policy standpoint. The possibility that an anti-abortion group might invent and patent an abortion method just to stop it from being used is a little troubling, but much less so (IMHO) than that Amazon can patent one-click checkout, or . So the article really isn't very convincing on the policy side.

From a legal standpoint, it's just plain silly. The only legal argument it suggests against this kind of patent is the nondelegation doctrine, which says that Congress cannot allocate to the President the power to make laws. The Supreme Court has invoked this doctrine very rarely and only in extreme cases where Congress has done just that. Note that there is generally no Constitutional problem with Congress granting to federal agencies the power to write regulations implementing laws, which have the full force of law, even where it gives only very slight guidance as to what those regulations should say. The patent system involves much less delegation than that. In fact, it really involves no more than when a private landowner is allowed to decide freely who can be on his land, by whatever criteria he chooses, and the Framers clearly had no problem with that.

In short, there are lots of problems with software, business method, and other new age patents. This is not one of the big ones.