Could The Supreme Court Invalidate Software Patents? | Techdirt:
Some folks claimed in response that Lee was advocating 'judicial activism,' and Scalia's hands were tied by the law itself. However, as Lee correctly retorts, the law does not explicitly say software patents are okay. In fact, the Supreme Court has ruled against such patents in the past. It's just that those rulings were a long time ago, and the lower courts (mainly CAFC) have chipped away at that over the past couple decades. Lee points out that in 1972, when the Supreme Court first rejected software patents in Gottschalk v. Benson, it invited Congress to change patent law if Congress intended for software to be patentable. Congress did nothing.