Justice Benjamin N. Cardozo once cautioned that “there is a loss too of simplicity and directness, an increasing aspect of unreality, of something artificial and fictitious, when judges mask a change of substance, or gloss over its importance, by the suggestion of a consistency that is merely verbal and scholastic.”  Many moons ago, I began drafting a blog post, trying to view the Supreme Court’s patent-eligibility jurisprudence through Justice Cardozo’s lens. Instead of ending up with a blog post, the effort led me, for the many moons, on an “academic” journey. Law360 published the result this month in Part 1 and Part 2 (subscription required). It is now available for all to view here on the Roberts Mlotkowski website.

The Supreme Court’s Artificial and Fictitious Patent Test demonstrates that the Court’s current jurisprudence concerning patent subject-matter eligibility masks a significant change of substance. The Court distorts its precedent and pretends that a brand-new two-step test for determining patent eligibility has been the law for over a century and a half when in fact it is a four-year-old fabrication. While attorneys must respect this test because the Supreme Court tells us to apply it, we should also respect the legal system of the United States by continuously criticizing it.

For those of you who, like the bulk of humanity, may not be entirely up to speed on the 1930s patent jurisprudence of the United States Supreme Court or my own patent scholarship, it should not be apparent why my blog is named Verbal Variances.  So I will pretend that you care, explain, and hope that you read on.

The title of this post is a quotation form a 1934 Supreme Court patent opinion by Justice Benjamin N. Cardozo. Although most modern jurists and attorneys might prefer the more familiar and condensed phrase,”in a nutshell,” that phrase has already morphed into a URL, and the corresponding website looks a great place to buy nuts, chocolate, and dried fruits.  Also, Justice Cardozo, my law school’s namesake, penned the “verbal variances” phrase when addressing which kind of evidence should be required for rebutting the presumption that a patent is valid. Years later, Justice Cardozo’s words became key in helping me find my voice for my writings on patent law.