On its official Google Blog, Google explains that one of the main objectives in making this service available is to “empower the average citizen by helping everyone learn more about the laws that govern us all”.  A quick comparison of Google Scholar’s home page and that of LexisNexis or Westlaw (the giants of the legal research market) makes it clear that Google has prioritized ease of use by the public.  In typical Google style, no fancy toolbars or esoteric database names stand in the way of finding a specific legal opinion.  There is also a conspicuous absence of distracting advertisements on the page (although this could change in the future).

What do lawyers think?

Reactions from the legal community have been mixed so far.  Law on my phone lauds the fact users don’t have to jump through hoops in order to print a legal opinion (printing is more complicated on Lexis or Westlaw, though more options are provided).  On the other hand, Goodson Blogson points out that Google Scholar doesn’t yet provide the full functionality of a Westlaw or LexisNexis search.  The lack of a citation search option is the most obvious example of such missing functionality.  Due to Google Scholar’s zero dollar price point, another major limitation is the unavailability of articles from journals requiring a subscription.

Despite its current limitations, the potential is there for Google to eventually expand Google Scholar to include most of the bells and whistles offered by familiar research companies like Westlaw and LexisNexis.  Google can take advantage of the fact that legal opinions are, for the most part, uniformly formatted to efficiently extract relevant data.  In fact, Advanced Scholar Search already provides search parameters for limiting case law searches to particular jurisdictions and/or date ranges.

Of course, the idea of providing free case law searches is not new.  Google acknowledges previous pioneers in the industry (including Tim Wu of AltLaw and Tim Stanley of Justia, among others) who have worked to make legal opinions available for the general public.  Given its awareness of these other research engines, it seems promising that Google will take note of the good design elements of these research engines as it develops Google Scholar into a more comprehensive research tool.

Do Westlaw and LexisNexis stand a chance?

With all of its potential, will Google Scholar eventually make Westlaw and LexisNexis obsolete? Some commentators, such as Bob Berring, have expressed doubts about how trustworthy free legal research systems may be.  Indeed, the mere fact that Westlaw and LexisNexis have dedicated research professionals who are able to provide critical analysis and commentary seem hard to beat in terms of legitimacy.  Unless Google wants to dive fully into the legal research business, it will most likely continue to rely on machines for data mining and language processing.  But no matter how fancy Google’s language processing algorithms are, it is would be difficult to argue that it has developed to the point of replacing human ability to interpret language, especially when it comes to teasing out the nuances in court opinions.

Westlaw and LexisNexis seem to agree (at least for now) and both claim to be unfazed by the prospect of potentially competing with Google Scholar.  Soon after Google announced the updated search feature, both companies made statements indicating that while Google Scholar may be a good tool for the general public, their legal customers rely on them for specialized information and legal insight.

Nonetheless, there may be reasons for Westlaw and LexisNexis to worry as new generations of law students will now have the opportunity to shop and compare the traditional legal research systems with Google Scholar.  Many of these law students (and likely many lawyers, especially those just starting) are already familiar with many of Google’s other services, making Google Scholar a natural way to acquire legal information.  For these individuals, Westlaw and LexisNexis may seem overly complicated and difficult to access by comparison.  Moreover, having had relatively less experience in legal research, Westlaw and LexisNexis may not hold as much authority for these younger lawyers.

To be clear, each of the research options – the subscription databases and Google’s free service – has advantages which the alternative lacks.  In particular, Westlaw and LexisNexis lack an easy-to-use interface (and lack free access), while Google Scholar lacks advanced search capabilities and professional legal commentary.  The perfect legal research tool is likely somewhere in the middle, though Google Scholar will no doubt be part of the arsenal of a savvy lawyer’s practice.  Whatever anyone says to the contrary, Google’s presence in a market causes changes, and the legal research market will likely be no exception.

Overall, the Justices pushed both sides to advance a reasonable standard for evaluating the types of applications that should be patented.  Most Justices were skeptical on granting patents to business methods.  Justice Ginsburg, for example, expressed concern that granting business method patents would also open the door to patenting “an estate plan, tax avoidance, how to resist a corporate takeover, [and] how to choose a jury”.  At the same time, however, some Justices were dissatisfied with the narrow “machine or transformation test” issued by the Federal Circuit (according to which methods must be either tied to a particular machine or transform specific subject matter in order to be patentable). It appeared that the Justices were aware that stating too strict a standard may very likely have negative implications for industries such as computer technology and biomedicine.  Regardless, judging from the criticism voiced by the Justices regarding the patentability of the business method claims in Bilski’s application, it appears likely that the Court will rule against Bilski’s claims.

The oral argument began with Jakes arguing that the Court should adopt a flexible standard as opposed to the rigid and narrow test adopted by the Federal Circuit.  In particular, Jakes argued that the test should be whether there is a “practical application of a useful result” that involves “physical steps”.  The Justices (including Justice Breyer and Justice Sotomayor) continuously questioned Jakes regarding what he thought would be a reasonable standard.  In particular, Justice Sotomayor suggested that a proper standard should be one that is tied to something, such as inventions, technology, sciences, or the useful arts.  Justice Ginsburg pushed for a standard that would base patentability on science or technology, which she argued is a standard that is used successfully in Europe and other countries.

Criticisms were expressed regarding Bilski’s claims.  In particular, Justice Roberts said that he failed to see any physical steps in the patent claim at issue.  In addition, Justice Kennedy was concerned that Bilski didn’t involve something that was tangible, and that the claims failed to show how the “substance” was different before the process and after the process.

When Stewart took the podium, the Justices bombarded him with questions about the “machine or transformation test”.  In particular, Justice Roberts stated that the test would seemingly allow even the most tangential and insignificant use of a machine to be patentable.  In addition, Justice Breyer stated his concern that a new machine test allowing a patentable process simply because the process is running on an old machine would be too broad.  Justice Stevens suggests that the question should instead be whether the new process is patentable apart from the machine.  Seeming to acknowledge this difficulty, Stewart responded that this case was probably not the best case to push for a broad standard on evaluating patentable subject matter (e.g., claims involving software innovations or medical diagnostics techniques).  He stated that he would rather the Court rule only on the narrow issue of whether these particular claims are patentable and leave the other issues unresolved.

It is interesting to note that at one point during the arguments, Justice Sotomayor explicitly stated that the ruling in this case would be limited to statutory limitation of “process” and thus would not overrule State Street (which was limited to machines).

Based on the Justices’ questions, it seems likely that the Court will restrict future patents on business methods.  The Court may also issue a rather strict standard on future software patents.  However, there seems to be enough hesitancy from most of the Justices to suggest that the standard adopted will most likely not be as strict as the one issued by the Federal Circuit.
A complete transcript of the oral argument can be found here.

By Jane Wu and Brian Harley.