Having clerked for a federal judge and spent my career appearing before them at various levels, I would say it is inaccurate to portray Supreme Court justices in particular as being out of touch even if they did grow up in an era where all the modern gadgetry did not exist.

The justices have astonishingly strong powers of analytical ability, as any attorney who has ever argued a case before them will attest (just imagine what it would be like if you had to prepare to field questions that might come at you from thousands of different angles from some of the smartest people around on a very complex set of legal questions such as those touching the fundamentals of the patent system, its history, its potential application to a huge range of inventions, etc. - "daunting" is a good word to describe the prospect of the challenge you would face).

Each justice is supported by law clerks drawn from the ranks of the best schools and who are easily within the top 1% of the law graduates in the nation (e.g., of the Harvard Law Review caliber of graduate). Much of the legwork of sorting through the myriad briefs filed in a complex case such as Bilski is done by the clerks. The average age of these clerks is probably something like 25, meaning that they themselves grew up with all the modern technology and are quite familiar with all the normal user experiences associated with it. As part of deciding a case, the justices not only have their clerks sort through the briefs and summarize their import in memos but also talk extensively with them about the key issues involved - all of this long before oral argument.

In a case such as Bilski, you also get the most impressive range of legal briefs imaginable. For a sampling, see this listing, with links to the briefs themselves (http://www.patentlyo.com/patent/2009/08/briefs-in-bilski.htm...). These are submitted not only by the parties themselves but by dozens of industry participants, trade groups, and other interested "friend-of-the-court" parties (such as EFF) - the piece I link to above lists 44 of them and that is not a complete list.

The Supreme Court also has the benefit of being able to wait until a case matures to the point where it feels the time is right to address certain important issues. It does this by having the discretionary authority to grant what is known as a writ of certiorari in deciding whether or not to hear a case. This means that an issue can kick around in the federal courts for years or even decades, with decisions going all over the board on it, and only when the Court decides it is ready for some definitive determination does it grant this writ and take up the issue at the highest level. This is what happened with the question of "what is the legitimate scope of patentable subject matter" in the Bilski case.

Thus, you have a tremendous wind-up leading to this sort of decision, with some very smart people prepping the issues along the way for submission to justices whose analytical strengths are sometimes even legendary (e.g., Scalia). Whatever result they come up with, I'm pretty sure it won't be some naive one based on failure to understand what an email is or some such thing. We may disagree with it on substance but I'm confident it will be something that is carefully through and fully up to speed concerning whatever counts in technology as well as law.

I've said it before and I'll say it again: I see nothing wrong with the questions the judges asked. Something wasn't clear to them, so they asked for an explanation. That seems perfectly fine to me. It certainly doesn't mean they're necessarily going to make a bad ruling.

Actually I find it beautiful in a philosophical way. That the Supreme Court of Justice tries to find the difference between email and text messages by simple questions is in essence, the direct application of the Socratic method. It seems odd that a 55 year old person does not know what texting is and how it works despite a thousand "My BFF Jill" ads. However, if you think justice should be blind and uninfluenced by external factors, lack of intimate knowledge or rather attachment to particular fields or experiences is a good thing.

I don't know about that. If a justice is to make judgements that make sense the participants in a society then it would help if they themselves are aware of the status quo of that society. Otherwise their judgments may be right in some philosophical sense but will alienate people from the law in a way that does tremendous damage.

Judgments should not only be 'right' they should make 'sense', and some of the language in the decisions indicates that not all of them are in touch with the world as we know it to the extent that they should be.

Good point.

One of the major issues with patent law is that it is stuck into the U.S. legal system and ultimately governed at the highest level by the Supreme Court who are technologically incapable. They do not have a scientific background, they are not even other patent attorneys, they are often people who have no idea what is going on and ruling on these issues.

It is the same with the legislature, where they are making laws related to technology without understanding the implications (e.g. net neutrality).

What we really need is some system whereby those who are technically capable of making good legal decisions about the subject matter in question are the ones doing so instead of those who cannot (or choose not) to grasp it.

Until we reach some reasonable way of doing so, we are going to be stuck with things like patent law in its current incarnation which shouldn't really have any applicability in most cases when it comes to software.