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You are here: Home FSF News Encourage the USPTO to stop issuing software patents; deadline September 27

Encourage the USPTO to stop issuing software patents; deadline September 27

by Brett Smith Contributions Published on Sep 23, 2010 04:50 PM
Following the Supreme Court's decision in Bilski v. Kappos, the United States Patent and Trademark Office (USPTO) plans to release new guidance as to which patent applications will be accepted, and which will not. As part of this process, they are seeking input from the public about how that guidance should be structured.

Normally when the USPTO solicits feedback like this, they hear almost exclusively from patent attorneys who have a vested interest in making sure that patents are granted as broadly as possible. And this process will be overseen by David Kappos, the current director of the USPTO and formerly an attorney at IBM in charge of their heavy-handed patent strategy. The company obtained large numbers of software patents with his oversight (and has continued to do so after his departure).

It's not hard to guess what this guidance will look like if we leave this process in their hands. But there's no rule that says only patent attorneys can offer feedback. Patent examiners are civil servants and accountable to the public at large. The USPTO should hear from software users and developers, who acutely feel the effects of software patents that limit what they can do with their computers and free software.

Ciaran O'Riordan, executive director of End Software Patents has said, "The Bilski decision didn't give us everything we wanted, but there was a silver lining. We asked the Supreme Court to reaffirm their rulings in Diehr, Benson, and Flook, and distance themselves from the decisions of lower courts that expanded patent eligibility. They did just that. Now the USPTO has to interpret this shift, and our task is to ensure that this key element of the decision isn't forgotten."

If you're a U.S. citizen, please write to the USPTO at and tell them that their new guidance should include a strong stand against software patents. Submissions are due by Monday, September 27. Please share a copy of your letter with us, by CCing That way the USPTO will know that someone else is keeping track of the number of letters sent.

Your letter should explain how you're affected by software patents, how software patents take freedom away from all computer users, and that a strong stance against software patents in USPTO's guidance would be consistent with the Bilski decision. If you like, you can use some of the text below to help you get started on your letter:

Software patents hurt individuals by taking away our ability to control the devices that now exert such strong influence on our personal freedoms, including how we interact with each other. Now that computers are near-ubiquitous, it's easier than ever for an individual to create or modify software to perform the specific tasks they want done -- and more important than ever that they be able to do so. But a single software patent can put up an insurmountable, and unjustifiable, legal hurdle for many would-be developers.

The Supreme Court of the United States has never ruled in favor of the patentability of software. Their decision in Bilski v. Kappos further demonstrates that they expect the boundaries of patent eligibility to be drawn more narrowly than they commonly were at the case's outset. The primary point of the decision is that the machine-or-transformation test should not be the sole test for drawing those boundaries. The USPTO can, and should, exclude software from patent eligibility on other legal grounds: because software consists only of mathematics, which is not patentable, and the combination of such software with a general-purpose computer is obvious.

More resources to help you write your letter are available on the End Software Patents wiki, at We'll also follow up there with information about the guidelines once they're published.

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