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Software patents after Bilski

by Peter Brown Contributions Published on Jun 29, 2010 11:53 AM
Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue. What's next?

The Bilski Ruling

The Supreme Court ruled yesterday in the long awaited Bilski case, a case that the Free Software Foundation had promoted as a vehicle for directly limiting software patents. As such, the decision disappoints, with the justices providing a narrow ruling and rejecting Bilski's business method patent.

The software patent mess that the US finds itself in today is a product of the US judicial system and not Congress. It is therefore all the more disappointing that the Supreme Court failed to use Bilski to clean house and remove software from the scope of patentability.

On a positive note, yesterday's majority opinion does stress past decisions in Benson, Flook and Diehr that clearly limit the patenting of software. We can read that as a larger rejection of the Court of Appeals for the Federal Circuit's (CAFC) State Street ruling that gave us the "useful, concrete and tangible result" test that led to the widespread patenting of software.

Much depends on how the United States Patent and Trademark Office (USPTO) implements the court's ruling. Robert W. Bahr, Acting Associate Commissioner for Patent Examination Policy, has already issued guidance directing examiners to continue to rely on the "machine-or-transformation" test to limit the granting of patents on abstract ideas. We must continue to remind patent examiners that abstract ideas implemented as software on a general purpose computer don't magically transform such ideas into patentable devices. If they did, then Bilski would soon have his patent with the help of a careful patent lawyer.

The increasing damage being inflicted by monopolies on essential techniques in computer programming will continue to run its course in the US economy, and the number of voices opposing software patents will increase. Congressional action that seemed unlikely before will receive new attention now.

There is also hope that with the large increase in software patent litigation we are seeing, we will soon have a software patent case to promote to the Federal Circuit. If anything, the Supreme Court's narrow ruling in Bilski has given the green light to defendants in those cases to attempt such appeals.

We can reflect that Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue.

For now, please help us continue to promote and distribute the film Patent Absurdity. Join the End Software Patents mailing list. And show your support for our campaign by making a directed donation to further these efforts.

With your help, we will continue to make the public case to exclude software from the scope of patentability.

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