Judge Naidu's Amicus Curiae Brief of August 13, 2009







On Writ of Certiorari to
The United States Court of Appeals
For the Federal Circuit

Aidun NC Naidu
Chief Counsel
Native American Law & Justice Center
PO Box 1441
Maple Valley, Washington 98038
Tel: 206-409-7025




At issue, in the lower courts, was whether an abstract idea is eligible for the issuance of a patent based on the statutory language of 35 U.S.C. §101, which states that:

“Who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.


The Native American Law & Justice Center handles cases involving the issuance of licenses and patents for intellectual property rights. The Center receives a significant number of requests each year for tangible and intangible inventions, discoveries and innovations.

The Petitioners’ decision to come to the Supreme Tribunal to challenge legislation is of vital interest to the Center as it pits a statute against the Constitution, the supreme law of the land.


Petitioners’ difficulties arose when the lower courts held that an abstract idea such as Petitioner’s application for a patent on a method to hedge risk in commodities trading is ineligible for patent issuance.

35 U.S.C. §101 admittedly draws its strength and derives its origins from the Patent Act of 1793 which provided that:

A patent may be granted to any person or person who shall allege that he or they have invented any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter.”

It has been suggested that the 1793 statute is not an American legislative imperative in that its roots repose in England’s Statute of Monopolies of 1623. The primary purpose of the 1623 statute was to discourage and prohibit the Crown from granting charters and other favors to its cronies.

The Patent Act of 1793 must necessarily be viewed from the lens of the federal Constitution’s Article 1, section 8, clause 8, which provides that the Congress shall have Power to:

Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Although the 1793 statute supposedly gets its inspiration from the 1623 Statute of Monopolies, the intent of the Article 1, section 8, clause 8 of the ratified 1789 federal Constitution is wholly and totally different from the intent of the 1623 legislation. It is, therefore, safe to assert that the 1793 Patent Act is not on all fours with the intent of Article 1, section, clause 8, without incurring the benefit of the chastisement of Justice William Brennan who once said that the belief that a judge can divine the original intention of the Constitution is a “little more than arrogance cloaked as humility.”

A simple and literal reading – which is all that is required – of Article 1, section 8, clause 8, clearly and cogently refers to copyrights, trademarks and patents for a limited time for inventions and discoveries by authors and discoverers. It is also arguable that Article 1, section 8, clause 8 was impelled by the Commerce Clause contained in Article 1, section 8, clause 3 of the federal Constitution.

Abstract ideas leading to inventions and discoveries, whether tangible products with machines and apparatuses, or intangible literary and musical masterpieces, is the essence of Article 1, section 8, clause 8 when the Constitution refers to the “Progress of Science and useful Arts.” The separation of the words “science” and “useful arts” is a grammatical bellwether cautioning the discerning reader that there are two wholly different and distinguishable disciplines. ‘Science’, without linguistic strictures, usually refers to inventions and discoveries in association with physical apparatus, machines, experiments, and processes; ‘Useful arts’, bereft of philological ramifications, usually refer to literature, prose, poetry, and music in the ordinary course of language and linguistics. Thomas Paine wrote that “The American constitutions were to liberty, what a grammar is to language: they define its parts of speech, and practically construct them into syntax.” (The Rights of Man, 1791). Petitioners’ request for a patent is a cry, a plea, for liberty of expression in the realms of commerce. The denial and rejection of their patent application is a denial and rejection of their liberty - an American birthright.

A previous binding decision of a higher court – the doctrine of stare decisis – is jealously and zealously guarded by this esteemed Court in that it is one of the cornerstones in the nature of the judicial process. An argument could be advanced that the binding properties and characteristics of a previous court decision is something akin to an abstract idea that found utterance as res judicata &- settled law until legislatively overturned or overruled. Although no patent, or copyright or intellectual property rights attach to a previous binding decision of a higher court, the fact remains that that decision is held sacrosanct. That abstract idea, memorialized as a binding decision, is often “carved in stone” and remains a much sought after quotable citation for eternity whether set aside or vacated by creative, or vengeful, legislation.

Petitioners’ application for a patent to seek intellectual property rights for their innovation of a method to hedge risk in commodities trading is not dissimilar to enjoying the benefit of authorship of a masterpiece literary work; or a trade secret for a culinary recipe; or a musical theme; or a binding judicial decision; or an idea that impels and encourages commerce. Justice Brandeis once opined that “thoughts, emotions, and sensations demand legal recognition.” (The Curse of Bigness: Miscellaneous Papers of Louis D. Brandeis, 1935). This Court where Justice Brandeis once served, has the power to grant legal recognition to the Petitioner’s thoughts that crystallized into an abstract idea with which they approached the United States Patent & Trademark Office which imperiled their chances and hopes of obtaining a patent.

The Court is encouraged to revisit the constitutional moorings concerning commerce in association with the promotion of science and useful arts based on contemporary economic, social, and political realities. “The Constitution, in this view, is unmoored and impermanent; it is a living Constitution with an ideological vengeance.” (“Construing the Constitution”, Davis Law Review, XIX (1985), 4.

The Court is further encouraged to view 35 U.S.C. §101 vis-à-vis congressional power to regulate commerce -the Commerce Clause, Article 1, section 8, clause 3 - and the Patent Clause, Article 1, section 8, clause 8. Congressional power to regulate commerce and promote science and useful arts is a constitutional mandate that should not be subsumed and disadvantaged by the statutory language of 35 U.S.C. §101 which ought to be bound from mischief by the chains of the Constitution’, to borrow a Jeffersonian phrase. Perhaps the time has come for the Constitution to be viewed as “a good canvas on which some strokes need retouching” (Thomas Jefferson Letter to James Madison, July 31, 1788).

Petitioner’s idea to hedge risk in commodities trading is an indispensable strategy in global capital markets where monopolistic meanderings, machinations, and manipulations often go unchecked, unnoticed, unregulated, and uncontrolled. Hedging protects all players. Artificial price fluctuations affecting supply and demand can be discouraged if not thwarted for the producer manufacturer, the buyer and the end-user. This is the essence of commerce. Not price fixing, destructive speculation, stock watering, bribery, and insider trading – the hallmarks of Wall Street that shuts out the man in Main Street who wants to play with clean rules.

Daniel Drew (1897 – 1979), a Wall Street maverick, once said that “The stock market is a place where a man with experience gains money and a man with money gains some experience.” Nothing has changed except for the actors. If the granting of a patent to the Petitioners will open the floodgates of abstract ideas demanding patents, let it be so if commerce is being advanced and promoted for the well-being of our nation given the fact that it has taken several body blows from the “sub-prime meltdown” and other capital market crises.

The crucial question revolves upon whether 35 U.S.C. §101 is repugnant to the Constitution, in particular, Article 1, section 8, clause 3; and Article 1, section 8, clause 8. If it is, then Petitioners ought to be granted a patent. If it is not, then the statute wins the day, but without the comfort and solace of a constitutional mooring. In a letter to James Madison of September 6, 1789, Thomas Jefferson wrote that “…no society can make a perpetual constitution, or even a perpetual law. The earth belongs to the living generation……every constitution then, and every law, naturally expires at the end of 19 years.” Jefferson’s prophetic wisdom must be applied to the pleas of the Petitioners, living men in this living generation, who wish to refresh and rejuvenate the capital markets with their innovation.

In conclusion, when interpreting 35 U.S.C. §101 from a constitutional perspective, the Court is respectfully encouraged to heed the advice of Justice Oliver Wendell Homes in Davis v. Mills, 194 U.S. 451, 457 (1904) where he said that “Constitutions are intended to preserve practical and substantial rights, not to maintain theories.” Petitioner’s right to obtain a patent will become an exercise in ‘maintaining theories’ if Article 1, section 8, clause 3, and Article 1, section 8, clause 8 are relegated to just that instead of being a vanguard for ‘practical and substantial rights.’

Clearly, the statute in question does not enjoy the constitutional calling of a supreme law as Article 1, section 8, clause 3, and Article 1, section 8, clause 8. For this reason alone, the Petitioners must prevail if the Appellant is solely relying on the ramifications of 35 U.S.C. §101, which assumes the visage of a constitutional stricture upon the said Commerce and Patent Clauses of the Constitution. The statute, thus, has no place in our constitutional constellation. Its presence in our statute books is but an aberration.

Respectfully submitted

Aidun NC Naidu, Chief Counsel
Native American Law & Justice Center
PO Box 1441
Maple Valley, Washington 98038
Tel: 206-409-7025


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