When in the course of judicial events, there arises a need for the appellate to pull in the reigns of progress and take over the avocation normally reserved for experts of science, particularly if said experts might opine that things software are worthy of patent protection, then it behooves those of us on the appellate side of the bench to SUMMARILY override the normal route of due process and to find facts on our own without ever giving chance of voice to those who might know better.
Hold the Benjamin Franklin presses!
We have let those horses race ahead of us.
Politeness demands that we first introduce the actors
and the stage from which they perform.
Our case in point: SMARTGENE v. ADVANCED BIOLOGICAL
The performing actors:
1.) Judge Lourie: Bachelor’s degree from Harvard University (1956), Master’s degree in organic chemistry from the University of Wisconsin (1958), Ph.D. in chemistry from the University of Pennsylvania (1965).
2.) Judge Dyk: A.B. from Harvard College in 1958
3.) Judge Taranto: B.A. from Pomona College in 1977
These "learned hands" have decided on their own that an ordinary doctor can perform in his head the operations of an inferencing engine:
Inference engines are well known by those of skill in the art and need not be described further herein. Each knowledge base used by an inference engine according to the present invention is a collection of rules and methods authored by a clinical advisory panel of HIV-treating physicians and scientists. A knowledge base may have subjective rules, objective rules, and system-generated rules. Objective rules are based on industry established facts regarding the treatment of HIV using antiretroviral therapy and are drawn from the package insert information of antiretroviral drug manufacturers and from peer reviewed and published journal articles. An example of an objective rule would be an antiretroviral to antiretroviral contraindication such as:
Rule #1: If the eval therapy contains Zidovudine (AZT) and Stavudine (d4T), then reject the therapy.