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The Better Tool: Beneficial Utility in Patent Law

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Ius et Iustitium is happy to present this guest post by Jake Neu. This is the second and final post in a series on patent law and the common good. The first can be found here. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP.

When a craftsman loses a tool, he can improvise in the moment to get the work done. For example, a man without a screwdriver can use a butter knife. But the knife cannot fully compensate for the lost screwdriver; it is not sized to the slot on the screw head, and the rounded knife point slips from the slot. The general need that prompted the invention of a screwdriver remains, and substituting a knife is just a half-measure until a screwdriver can be found.

In my first post, “The Common Good in Patent Law,” I explained how U.S. patent law had a historical doctrine known as beneficial utility, which held that patents should be denied to inventions that are “frivolous or injurious to the well-being, good policy, or sound morals of society,” that is, inventions not directed to the common good of all. Beginning in 1960, the Supreme Court and the Court of Appeals for the Federal Circuit (which hears all patent appeals) excised beneficial utility from the body of patent law.

This second post provides a case study in what happens when the courts remove the common good from their toolkit. A recent quartet of Supreme Court cases involving the issue of patentable subject matter demonstrates that the need that generated beneficial utility—concerns about awarding patents to inventions that inhibit the common good—remains as strong as ever. But to deal with these concerns, the Supreme Court finds itself relying on patentable subject matter (PSM) jurisprudence, trying to create judge-made, value-neutral exceptions to what is otherwise patentable. This is like using a butter knife to drive screws—it might work in a pinch, but it is not the right tool. The Court should pick up the tool it discarded in 1960, beneficial utility, to address questions of public policy when considering granting or invalidating patents.

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Against Judicial Dyarchy

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Ius & Iustitium is happy to present this guest post by Jamie McGowan. Jamie McGowan is a postgraduate researcher in Constitutional Law at the University of Glasgow.

The recent debate about originalism in the US has triggered a lot of conversation about judicial deference. Adrian Vermeule recently clarified that the position of common good constitutionalism is that legislators of every kind ought to consider the common good and natural law when making legislative decisions. He rightly noted, however, that a very different question arises concerning the “institutional allocation” of that legislative power. Given the recent Bostock decision in the US, the question that inevitably enters the conservative legal debate is whether it is wise to allocate so much legislative power in the judiciary. In civil law countries, the judiciary deals mostly in the particularia of individual cases, determining moral right in its context, without establishing legal precedent. In most modern common law countries, however, an incredible amount of binding legislative power is bestowed upon judges, to the extent that the judiciary becomes a sort of supra-legislature. In classical legal theory, where law carries a telos of upholding the common good, the pertinent question is whether this judicial supremacy is friend or foe to the primacy of the common good and, by implication, the natural law.

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Ius Gentium and Tribal Sovereignty

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Ius & Iustitium is happy to present this guest post by Dr. Jonathan Askonas. Dr. Askonas is an assistant professor of politics at the Catholic University of America and a Fellow at the Center for the Study of Statesmanship.

Last week, the Supreme Court issued a stunning decision in favor of tribal sovereignty in McGirt v. Oklahoma. The case turned on the question of whether the Creek reservation was ever disestablished by Congress, and therefore whether Creek sovereignty was extinguished in favor of the State of Oklahoma. Most of the arguments in the opinion are over whether Congress’s various actions diminishing or infringing on the original rights granted to the Creek were sufficient to count for disestablishment. But underlying the dissenting opinion (that Congress had disestablished the Creek reservation) is a fatal flaw: the collapsing of the distinction between imperium and dominium that is essential to the ius gentium and that is explicitly incorporated into American constitutional law on this very issue.

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The Ministerial Exception and the Liberty of the Church

Yves Casertano

Is a Catholic school teacher a “minister” of the Catholic Church? Notwithstanding the more laity-centric ecclesiology of the past several decades and the proliferation of “ministers” and “ministries” in the average parish, most Catholics would answer in the negative. While the Catholic Church employs a multitude of lay people in important functions, particularly in schools, calling them “ministers” is indeed a stretch. In today’s dissenting opinion in Our Lady of Guadalupe School v. Morrissey-Berru, Justice Sotomayor emphasized this incongruity. She claimed that the “ministerial exception” to employment laws is meant to address concerns about state meddling in the leadership and governance of religious communities. Relying on the more common understanding of “minister”, Justice Sotomayor suggested that the exception should only apply to those individuals who serve a “unique leadership role” in religious community, which does not include “[l]ay faculty . . . who teach religion at church-affiliated schools.”

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The Common Good in Patent Law

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Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings, LLP. This is part one of a two part series. The second part is here.

Adrian Vermeule’s opening post at Ius & Iustitium began with the assertion that “the common good has a much longer and more impressive pedigree within our law than does originalism itself.” He calls this an “obviously large claim[], which I cannot fully substantiate here.” But if Vermeule’s claim is true, then common good jurisprudence should be visible at or just underneath the surface of various fields of American law, even those that do not seem to admit of common good considerations at first glance. One such example to help pay down Vermeule’s debt is patent law.

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