“Property?” Really?

This is not the language I would have hoped for from any lawyer, much less a Supreme Court Justice. Based on this account, anyway, it’s clear that the Court has no desire to tackle the hard question and, luckily for them, they have a nice narrow out to let them wriggle through — still, what an example of how “property” thinking has come to pervade this discussion! And from a “strict constructionist” justice! I wonder what the Founders would have to say about his construction of what a patent is: Justices question eBay patent arguments [pdf]

Several of the justices expressed skepticism during oral arguments about eBay’s contention that a federal appeals court had made it too easy for patent owners to get injunctions barring the use of their technologies.

“You’re talking about a property right, and the property right is explicitly the right to exclude others,” Justice Antonin Scalia told eBay’s lawyer. “That’s what a patent right is … give me my property back.”

I look forward to the analyses that we’ll find tomorrow. CNet’s (by Anne Broache and Declan McCullagh) is here: Supreme Court hears eBay’s patent appeal. They give a little more context to the Scalia quote, but it’s still an assertion that patents “are” property rights rather than “like” property rights:

Justice Antonin Scalia questioned eBay’s argument that companies should be treated differently if they don’t actually use the patents they own in business–such companies are often derisively called “patent trolls.”

“Why should we draw a distinction between the solo inventor who needs a patent speculation firm to market his invention and somebody else?” Scalia asked. “We’re talking about a property right here, and a property right is the exclusive right to exclude others.”

And a priceless quote from the new Chief Justice that suggests that there might at least be something in dicta about what ought to be patentable:

Chief Justice John Roberts drew laughter from the usually taciturn court audience when he made a quip about his interpretation of MercExchange’s patent. “It’s displaying pictures of your wares on a computer monitor and picking the ones you want. I might be able to do that.

“It’s not (like the patent describes) the internal combustion engine,” he added. “It’s very vague.”