[FSF] Bilski hearing: software patent abolition possible

[John Sullivan]

# Bilski hearing: software patent abolition possible

BOSTON, Massachusetts, USA -- Tuesday Nov 10, 2009 -- The End Software
Patents (ESP) campaign has published a hopeful analysis of yesterday's
Supreme Court hearing of the Bilski case. Although neither arguing
party put software patents on the agenda, the judges posed questions
that raised the issue and sometimes called into doubt the value of
software patents.

   <http://news.swpat.org/2009/11/bilski-hearing-software-patents>

ESP executive director Ciarán O'Riordan notes, "There are no clear
statements about software patents, but some comments give us hope, and
they hint that maybe the judges found the amicus briefs interesting."
Examples include:

* Justice Breyer noting that he's not sure if "with respect to
  information ... patents protection will do no harm or more harm than
  good"

* Chief Justice Roberts criticizing the USPTO's claim that use of an
  "interactive website" would make a business method patentable: "No,
  no. That's just saying instead of looking in the Yellow Pages, you
  look on the computer; and that makes all the difference to you?"

* Justice Stevens points out that programming a computer is not the
  same as making a DVD player: "the only difference from the old
  computer is it's using a new program. You can't say that's a new
  machine."

* Justice Kennedy highlighted the natural science aspect of the 1981
  Diehr ruling: "that looked like a machine, the substance was
  different before the process and after the process"

On the lack of direct comments about software patents, O'Riordan
explains, "This is a case about a business method patent, so we were
never guaranteed to have software considered at all. The judges did
raise the issue, but Bilski's representative pre-empted the discussion
by arguing that simply everything should be patentable -- even 'a new
thing to say on the telephone'! The USPTO representative got himself
in a knot explaining why he was dodging the issue. The judges did seem
troubled by the question of: in a sequence of steps with no physical
component other than a computer, where does the invention lie? and
they noted pretty clearly that allowing a computer to confer
patentability could create a back door that would undermine existing
exclusions."

There is no date for the final ruling, but some suggest it will be
early next year. It may also lead to proposals to change legislation,
so raising awareness and improving our explanations is very important.
ESP is asking for your help in documenting the problems with software
patents and in raising awareness in the mainstream media, software
press, and in legal communities. ESP hosts a wiki and a news site to
support these tasks:

  * <http://en.swpat.org/wiki>
  * <http://news.swpat.org>

A transcript of the hearing can be read on news.swpat.org:

  * <http://news.swpat.org/2009/11/bilski-hearing-transcript>

And background information about the Bilski case can be found at:

  * <http://endsoftpatents.org/about-bilski>


### About the End Software Patents campaign

End Software Patents is a project formed to eliminate patents for
software and other designs with no physically innovative step. It
promotes a US technology-development environment which will drive
innovation and growth in the global marketplace. End Software Patents
receives sponsorship from the Free Software Foundation. For more
information on participating in the project, or to access its
knowledge base, please visit its website at
<http://endsoftpatents.org>.

### About the Free Software Foundation

The Free Software Foundation, founded in 1985, is dedicated to
promoting computer users' right to use, study, copy, modify, and
redistribute computer programs. The FSF promotes the development and
use of free (as in freedom) software -- particularly the GNU operating
system and its GNU/Linux variants -- and free documentation for free
software. The FSF also helps to spread awareness of the ethical and
political issues of freedom in the use of software, and its Web sites,
located at fsf.org and gnu.org, are an important source of information
about GNU/Linux. Donations to support the FSF's work can be made at
<http://donate.fsf.org>. Its headquarters are in Boston, MA, USA.