Congress makes legislation. That's only part of law. The judicial branch of government attempts to resolve ambiguities in the legislation. That's what the Supreme Court did in 1972 when they ruled in Gottschalk v. Benson that software for a general-purpose digital computer was not eligible material for patent protection. They were careful to say that Congress should really clarify this question, and that they weren't categorically saying no software could ever be patentable.

Congress has still not clarified this question. What should be followed is Supreme Court precedent, i.e. Benson, Flook, Diehr. Theoretically, that's the law until Congress says something different.

The word of the Supreme Court should be actual law, not just theoretical law. It's up to the executive branch to direct the USPTO to follow that law. Patents should be examined consistent with Supreme Court precedent.

Astonishingly, people have been known to disagree about what the Supreme Court's holdings mean. You keep bringing up the same set of cases, but I don't agree with your analysis. Why? Because it seems to me that some of the time you're relying on the SC's dicta rather than its holding, and only the holding really counts; and furthermore, you seem oblivious to questions about standards of review and so forth.

If the circuit courts were flouting the judgment of the Supreme Court as blatantly as you allege, how come the Supreme Court hasn't granted certiorari on a suitably iconic case and reiterated its judgment in even clearer terms? It's not like there is any rule that prevents that, a grant of certiorari only requires 4 justices to sign on.

I don't think the Supreme Court wants to reiterate its judgement in even clearer terms. They said even in Benson that they felt Congress should clarify the whole business.

I laid out clearly why I think what I think about Benson, Flook and Diehr in http://ourdoings.com/ourdoings-startup/2011-07-28 and I have yet to see a similar outlay of the arguments for an opposing view.

If I've neglected a question about standards of review, I apologize. Please repeat it.

We discussed this in September, but I just now see you left me another reply(though I don't think it alters the argument that much): http://news.ycombinator.com/item?id=3031449

I'm on my phone at the moment and don't really have the time to write a long article in any case; but in a nutshell I think you are making too many assumptions about the meaning of the SCs words without considering their meaning as legal terms of art.

> Congress has still not clarified this question.

I wasn't aware of that. However, I suspect that legally, Congress must clarify that before it comes into force as law. But I don't know, the Supreme Court is a funny thing. Good question for a lawyer...