The Lessig case!!!

>> There is no mention here of promoting progress

rahvin:

I should have read a little further. It appears Lessig conceded the view that promoting progress does not place substantive limits on Congress' legislative power.

I think it was a mistake to concede that point [perhaps Lessig did not feel he had sufficient backing or arguments at that time].

In any case, this was not a point that was argued (so it was best not to argue it rather than to argue it badly I imagine). The court relied on that agreement and on another variation of this from Schnapper vs Foley to conclude that this limitation also did not apply to Congress in that current case.

What may have been argued in Schnapper vs Foley was that it is assumed Congress can do what it wants without risking not promoting progress. However, we can conceive of many cases where monopolies gone rampant (and today's software patents, at least in some extreme cases, fall under this category) can hardly be argued by anyone to promote the progress.

What was the intention of those that wrote the Constitution? I don't know, but it doesn't seem consistent for them to have assumed monopolies, as Congress might feel like granting them, should be assumed to promote the progress and essentially help individuals or society. In particular, monopolies are clearly against individual rights (by definition), and this was brought up in the Bilski hearing by Breyer. The only reasonable and consistent interpretation of that clause, from what details I know and from using "common sense", is that promote the progress is to be interpreted as a real constraint on Congress.

Again, that point was not argued in the Lessig case and perhaps is due to be revisited, if necessary, under the context of the 21st century and software patents.

OK, so it does appear "promote the progress" was considered briefly in Lessig.

I disagree with your "NEVER".

I disagree it would be fairly unlikely for them to make a strong ruling in Bilski against software patents on different grounds (though the Justices did mention they might certainly not rule on too much),

But I apologize for missing the promoting the progress question in Lessig in my prior comment and effectively suggesting you might have been exaggerating a lot or even trying to deceive.