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Bilski Oral Argument at the US Supreme Court

by Peter Brown Contributions Published on Nov 18, 2009 03:21 PM
The Supreme Court recently heard oral arguments in a case that could give the free software community (and software developers everywhere) a huge win in the fight against software patents. Free Software Foundation executive director Peter Brown was on the scene, and reflects on the Bilski case, the oral arguments, and the desperate need for change.

It was a beautiful day in DC as the Supreme Court heard oral argument in the landmark Bilski case, a case that could drastically limit the scope of what is patentable.

Bernard Bilski, Rand Warsaw and attorney Michael Jakes

The line of visitors hoping to get a seat in the court and view oral argument was huge. It stretched away from the Supreme Court building across the marble concourse and down the steps. It then dog-legged left and stretched the full width of the Supreme Court building, ending where camera crews were setup to collect interviews with those participating in court proceedings

Prior to the hearing, I went along the line of those waiting to gain entry to the Bilski hearing to find out why they were there. Did they know much about the case or were they just tourists hoping to get a glimpse of Supreme Court proceedings? In all, I met only one claimed business method inventor, the rest were lawyers or law students. No tourists. So certainly a huge level of interest from the legal profession. It left me to wonder, how much is the software patent industry worth to the legal profession? And is it any wonder that a major lobby for software patents is the legal profession itself?

This is a case that could have huge implications for developers' ability to patent software, but software developers were nowhere to be found, or if present, were out-numbered twenty to one by lawyers. There is something rather perverse about the patenting of software when the vast majority of those that practice the art of software development want nothing to do with the patent system - and for good reason.

After oral argument, I had the opportunity to put some questions to the patent holders themselves, Bernard Bilski and Rand Warsaw, and to the attorney who argued their case for them in front of the justices, Michael Jakes. As in oral argument, Mr Jakes was unabashed: let everything under the sun be within the scope for a twenty year monopoly that the patent system grants, let software developers practice their art at the pleasure of lawyers, and trust the PTO and litigation to clean up the mess. Mr Bilski and Mr Warsaw were also explicit that the idea of patenting their clever math was justified, claiming they had invested millions to device their equations. As to the unpatented math they had built their business method upon, what did they think of that? In their view, that was simply a historic failure of the system to not grant such patents!

Software patents are so far out of step with previous Supreme Court rulings one can only wonder what Mr Jakes and his clients hope to achieve with this brazen line of argument. Does he think he can create a separate reality for the justices? To be honest, I think that's exactly what he and the software patent lobby hopes for. It is unfortunate, but even Mr Stewart arguing for the Government wouldn't make the necessary argument to limit software patents. Certainly one of the most telling exchanges was with Justice Kennedy:

Mr Stewart: We recognize that there are difficult problems out there in terms of patentability of software innovations and medical diagnostics.
Justice Kennedy: You thought we -- you thought we would mess it up.
Mr Stewart: We didn't think the Court would mess it up. We thought that this case would provide an unsuitable vehicle for resolving the hard questions because the case doesn't involve computer software or medical diagnostic techniques, and therefore, we thought the Court would arrive at the position that I think, at least some members are feeling that you have arrived at, that you will decide this case, and most of the hard questions remain unresolved.

But leaving this situation unresolved is the worst possible outcome for software developers. When you can patent math is it any wonder that there has been an explosion in the number of patents filed? 200,000 software patents alone. Now imagine that you are a programmer wanting to solve a problem by writing some code. How will you know whether there might be a claim against your work by an entity holding one of these 200,000 patents? You don't. You won't even contemplate looking, because a system that has allowed software to be patented has already failed you. Leaving this unresolved will allow large software patent holders like IBM and Microsoft and shadowy operations like that of ex-Microsoft CTO Nathan Mervold's Intellectual Ventures to continue taking rents from anybody they target.

Despite the pleadings of those that practice the art, it seems that a large part of the legal profession is loathe to give up this profitable enterprise.

For a more sympathetic reading of why lawyers want to patent software, we might generously say they have a misunderstanding as to the nature of software. There is a very interesting article on Groklaw by PolR entitled "An Explanation of Computation Theory for Lawyers" that takes this tact. If nothing else it is worth linking to in the hopes that more lawyers might read it and realize the truth of the situation. Introducing his article PolR says:

"Consider the following list of statements.

All software is data.
All software is discovered and not invented.
All software is abstract.
All software is mathematics.

.... When you know computation theory, you know without a shred of a doubt that each of these statements states a fact that is grounded in well-established mathematics. If you don't know computation theory, these statements will probably look to you like debatable issues."

There are reports available now that analyze the Justices questioning during the argument. They suggest a high degree of skepticism about business method and software patents. I recommend reading End Software Patents' Ciaran O'Riordan's article on the subject for a listing of those comments. Yet many of the pro-software patent attorneys hope that the court will follow the government's lead and somehow keep software patents intact.

Let us hope that the Supreme Court Justices are constitutionalists this time around and can help liberate free software from the threat of patents, lawyers, and litigation.

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