Statutory Construction Blog

"Perceived poor drafting should not be regarded as a licence to invalidate plaintext readings in the name of fixing a statute that some believe is broken."

So said the Fifth Circuit in an interesting BAPCA case, interpreting the "hanging paragraph" at some length. I'm not a bankruptcy person (nor do I want to be one!), but it is an interesting case, Miller v. DaimlerChrysler Financial Serv., ___ F.3d __ (5th Cir. Jun. 5, 2009).

It emphasizes the Supreme Court's holdings that, even with an ungrammatical, awkward, and sometimes incomplete statute, plain language controls over "equity" and, I would argue, common sense.  I wonder about the efficiencies served by the rigid textual plain language approach the court adopts with a statute like BAPCA, that is cobbled together and known to have problems...

Supremes Grant Cert in Bilski - Supremely Important Patent Statutory Interpretation Case

Recently, the Federal Circuit in Bilski held that business methods were not patentable unless they satisfy the machine-or-transformation test:  the business methods must either: 1) transform matter into a different state or thing, or 2) be tied to particular machine.  Bilski rejected its own 1998 ruling in State Street Bank, which had reasoned that business methods were patentable if they produced a “useful, concrete, and tangible result”. 

The questions presented in the petition for Supreme Court review are:

1. Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

2. Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

What is interesting to me is the fact that this presents the "old" style of patent statute -- a broad grant, not the detailed style we see today.  There is much policy development left to the courts by the statute, as a result, and it will be interesting to see how this one comes out.  Bilski was viewed, by my friends at least, as the death knell of many areas of innovation.

Interesting, Important Split on Admissibility of Expert Testimony about Science of Eyewitness Testimony

This is not so much a statutory interpretation case, but it is really interesting.  The judge notes that it is settled that there is a "vast lacuna" between how much weight jurors give eyewitness testimony, and how much science shows it is entitled too but, even so, courts split on admitting expert testimony on its unreliability.  US v. Smith is the case, available here.  The judge notes that older case law often excluded it, but "as the body of evidence has grown" showing it is unreliable, some judges are coming out the other way, and a split exists.

(Among other things, it demonstrates-- aghast -- that judges do make policy and law.  Even in Alabama, Senator Sessions, even in Alabama!  Perhaps we should get these wild liberal Alabama activist judges impeached forthwith!  Yes, I'm sick of this "judges don't make law" thing. Judges make law every day -- every day -- and they must.  Let's stop the charade!)