key factor responsible for reversing the 20-year productivity slow-down from the mid-
1970s to the mid-1990s and in driving today’s robust productivity growth.” R.D.
Atkinson & A.S. McKay, Digital Prosperity: Understanding the Economic Benefits of the
Information Technology Revolution 10 (Info. Tech. & Innovation Found. 2007), available
at http://www.itif.org/files/digital_prosperity.pdf. By revenue estimates, in 2005 the
software and information sectors constituted the fourth largest industry in the United
States, with significantly faster growth than the overall U.S. economy. Software & Info.
Indus. Ass’n, Software and Information: Driving the Knowledge Economy 7-8 (2008),
http://www.siia.net/estore/globecon-08.pdf. A Congressional Report in 2006 stated:
As recently as 1978, intangible assets, such as intellectual property,
accounted for 20 percent of corporate assets with the vast majority of
value (80 percent) attributed to tangible assets such as facilities and
equipment. By 1997, the trend reversed; 73 percent of corporate assets
were intangible and only 27 percent were tangible.
H.R. Rep. No. 109-673 (accompanying a bill concerning judicial resources).
This powerful economic move toward “intangibles” is a challenge to the
backward-looking change of this court’s ruling today. Until the shift represented by
today’s decision, statute and precedent have provided stability in the rapidly moving and
commercially vibrant fields of the Information Age. Despite the economic importance of
these interests, the consequences of our decision have not been considered. I don’t
know how much human creativity and commercial activity will be devalued by today’s
change in law; but neither do my colleagues.
The Section 101 interpretation that is now uprooted has the authority of years of
reliance, and ought not be disturbed absent the most compelling reasons.
“Considerations of stare decisis have special force in the area of statutory interpretation,
2007-1130
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