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You are here: Home Bulletins Bulletins from 2008 Spring 2008 Bulletin End Software Patents by Peter Brown

End Software Patents by Peter Brown

by Matt Lee Contributions Published on Jul 17, 2008 08:56 PM

On Thursday May 8, 2008, the United States Court of Appeals for the Federal Circuit (CAFC), in an en banc hearing listened to oral arguments in In Re Bilski. The Bilski case is where the legal battle over software patents in the U.S. is currently being fought, and is particularly important because the court has specifically requested guidance on the scope of patentable subject matter. This "en banc" hearing is a very rare occurrence; it means all twelve judges of the court participate in the hearing and will consent or dissent with the majority ruling.

The case itself is about the validity of a patent for a business method for managing risk costs of commodity selling. The patent is held by Bernie Bilski. Business method patents have the same essential flaw that software patents have--they are little more than algorithms that have long been held not to be patentable subject matter.

The en banc hearing was prompted by a series of rulings from the Supreme Court that have overturned decisions made by the lower CAFC court, calling into question CAFC's competence. The problem has always been that the CAFC was composed of patent lawyers with a vested interest in expanding the scope of patent law. Now the question is, can they fix the mess they've made?

The FSF-backed End Software Patents (ESP) project filed an amicus curiae brief to the court.The ESP brief recommends re-establishing the Supreme Court's rule that information should not be patentable, even when claimed in tandem with a physical afterthought. The brief explains that it is widely recognized in U.S. law that pure information is not patentable. Further, the Supreme Court has ruled three times that pure information does not necessarily become patentable when recited in combination with a physical object, such as information written to paper or loaded into a computer's memory. The brief notes that the appeals court of the Federal Circuit ignored the Supreme Court's repeated rulings, and began allowing patents on information plus any physical component: a formula, if saved to a computer's hard drive; a price list, if money is eventually moved; not a correlation, but the act of correlating.

Most interestingly, the financial services industry lead by Bank Of America briefed the court in line with our arguments--that just loading an abstract algorithm onto a computer is a loophole and not a real means of making an abstract concept physical--and was granted leave to present oral argument to the en banc hearing.

A joking title for this article could have read "Microsoft briefs court to End Software Patents (sort of)." Microsoft's brief to the court said, "... a patent should not be granted under 103 if the inventor merely combined well known computer hardware with inventive but otherwise unpatentable software." The brief is written in a confused manner, describing how one could possibly eliminate certain types of software patents, if found worthy of elimination, via Section 103 of the Patent Act. This confusion seems to mirror the business situation they find themselves in, where they want to use software patents to threaten free software developers but at the same time they are one of the largest targets for software patent litigation.

In reaction to the hearing, ESP director Ben Klemens said, "We can be relatively optimistic about the odds that the courts will actually eliminate patents on intangibles like software. There will be twelve judges hearing Bilski's case, and only five of them are guilty of bringing us into this mess, and all twelve are aware that the Supreme Court will overturn a ruling that doesn't do enough."

To date, ESP has been focused on bringing about a judicial review, because we have believed that it is the most likely path to change. When we first analyzed the strategic course for the project, Klemens predicted that the courts were our only realistic hope for directly addressing what is patentable subject matter, and I'm happy to say that he was right -- though on a significantly shorter timetable than we had planned for. Now, in filing the ESP brief to the court and as we shift our strategic focus to oppose other legislative action that might impose software patents, Klemens has decided to step down as director of the project. Klemens writes:

I always thought of the options for reform of patent law along two threads: roughly, the legislative or judicial. The approaches are very different, involve very different campaigns and campaign activities, and require different skills for implementation. I primarily talk about the law and economics of the matter, but I really do think that these patents are unethical, and want to see them eliminated. Working with the FSF has been fun and I would of course feel great if I had a major hand in saving the day in the end. But it's important to distinguish between what I enjoy doing and what will work best for a campaign aimed at the public and legislature.

Klemens will continue to advise the FSF as we await the Court's ruling and move ahead with the campaign.

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