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Freetards lost badly in Bilski

From: Alexander Terekhov
Subject: Freetards lost badly in Bilski
Date: Wed, 08 Dec 2010 15:56:45 -0000

Jun 28, 2010

Bilski decision a major disappointment: doesn't invalidate even one
software patent
The Supreme Court of the United States (SCOTUS) has finally handed down
its opinion in re Bilski, a business method patent case. The patent
application in question relates to a method for managing certain risks
related to price changes in the energy market.

Like many other critics of the patentability of software, I hoped that
the Supreme Court would not only uphold the decision of the previous
instance (the US Court of Appeals for the Federal Circuit), which had
declared the claimed "invention" ineligible for patentability: that was
widely expected. This case would also have been a splendid opportunity
for the Supreme Court to draw a line and establish a reasonably
restrictive set of rules that would either do away with many business
method patents or, ideally, go even further and up the ante for software
patent applications.

Unfortunately, the Supreme Court delivered an opinion that doesn't help
the cause of partial or complete abolition of software patents at all.
Within the range of possible ways in which the Supreme Court could
justify its decision to affirm the rejection of the relevant patent
application, the court's majority position is about the most liberal
reasoning that it could have been. Only a decision to grant a patent on
the Bilski application could have been any less restrictive.

Simply put, the Supreme Court's decision does not do away with even one
software patent that already exists, nor does it raise the bar for the

The Supreme Court decided that the business method in question wasn't
patentable because it was an abstract idea but simultaneously stressed
that business methods can indeed be patentable. The court cited a
long-standing principle in US patent law according to which "ingenuity
should receive a liberal encouragement". In case of doubt, the scope of
patentable subject matter should always be broad rather than narrow. In
today's technology landscape, that approach means software patents
without any meaningful limitations. Plain and simple.

Only new legislation could restrict the scope of patentable subject
matter beyond the Supreme Court's permissive stance. The ruling makes
reference to an earlier decision, according to which the courts "should
not read into the patent laws limitations and conditions which the
legislature has not expressed."

But restrictive legislation is a long shot to say the least. In the
Bilski case, major corporations particularly from the IT industry issued
warnings against any limitations of the scope of patentable subject
matter. IBM even made the absurd claim that software patents liberated
programmers and made open source development so very popular. Against
that kind of support from industry, it is hard to see how the opponents
of software patents could successfully lobby the United States Congress.

The Supreme Court's decision does leave it to the appeals court to
develop new legal tests that could make certain claimed inventions
patent-ineligible. However, the Supreme Court opposes the notion that
the traditional machine-or-transformation test could serve as the sole
test of patent-eligibility of processes. Since the Supreme Court also
made it clear that even business methods should be patentable in
principle, it's hard to imagine that the appeals court would now develop
any seriously restrictive case law.

Like I wrote further above, the Bilski case would have been an
opportunity to affect at least in part the patentability of software in
the United States. The decision announced today makes it clear that a
majority of the Supreme Court wanted to give the abolition of even only
a small percentage of all software patents the widest berth possible.

The petitioners in the Bilski case lost because their application won't
result in the grant of a patent. But the free software and open source
movements lost something even more important: a rare chance to achieve
at least a partial victory.

This US decision is even more disappointing when taking into account the
global trend. New Zealand's parliament was temporarily inclined to
abolish software patents, but a trend reversal was brought about by IT
industry giants lobbying the legislature. The German equivalent of the
Bilski case, a decision on an XML/HTML document generator, also ended in
a resounding victory for the pro-patent camp.

The anti-software-patent movement has clearly had a bad year, and it
hasn't made any noticeable progress in a number of years. I know a lot
of people in this community don't like the notion. Nor do I. But we must
face the facts.

The position that software patents should be abolished isn't nearly as
popular among judges and politicians as it is in the free and open
source software community.

In recognition of that fact, it's time to think of new approaches. Let
us be open-minded about strategies that could have a certain positive
effect under the circumstances, such as the upcoming Defensive Patent
License (DPL).

If you'd like to be updated on patent issues affecting free software and
open source, please subscribe to my RSS feed (in the right-hand column)
and/or follow me on Twitter @FOSSpatents. 
Posted by Florian Mueller at 4:51 PM   
Labels: Bilski, SCOTUS, Software Patents, Supreme Court of the United


(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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