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Bilski loses, but the patent madness continues


Once upon a time, the U.S. patent system served a useful purpose. It was meant to encourage inventors and innovation. Ha! Boy, was that a long time ago. Now patents, especially software patents, serve only as bludgeons for patent trolls — companies that do nothing but own patents and then threaten to sue companies that actually do something with ideas — or they’re used by big companies to beat up on smaller ones. I had hoped that the SCOTUS (Supreme Court of the United States) would do the right thing in the Bilski case and slap both business process and software patents down once and for all. SCOTUS didn’t. While SCOTUS ruled against Bilski, the Court left the door open for IP (intellectual property) patents (PDF Link) to be granted.

I’m so ticked off, I could spit.

Now, IANAL (I am not a lawyer), but I do follow IP issues quite closely, and it seems pretty darn clear to me that SCOTUS punted on IP patents. Specifically, as reported by the outstanding SCOTUSblog, while the Court held that in the Bilski case, "the specific invention in this case, a method of predicting business or economic cycles, was ineligible for a patent," they also left the door open for software and business practice patents when the Court ruled that in "discussing the proper test for patentability, the Court says the ‘machine or transformation’ test may be a useful and important investigative tool, but it is not the sole test for determining whether a ‘process invention’ is patentable."

Continuing, "The Federal Patent Act does not categorically exclude business methods from eligibility to be patented." Therefore, "The word ‘method’ within the law’s definition of ‘process’ may include at least some methods of doing business. Even though the invention in this case would not be categorically barred from eligibility, the Court says that does not mean it qualifies as a process."

In English, I take this to mean that while, as expected, Bilski has lost, the broken patent system he tried to exploit continues on. In the decision, the Court wrote, "It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection. This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck."

The more I think about it, the more I think I picked the right word; SCOTUS has indeed punted on IP patents.

As Pamela Jones, editor of Groklaw observed, "So, no blanket decision on categories. Sadly. … What they did is pull back some from the lower court’s decision. They don’t get the tech, I’m afraid. And they believed the BSA [Business Software Alliance], which in my view is a mistake. And they think patents are a good thing. They didn’t specifically address software patentability. They passed on that question. So, this will require more work, later cases."

Peter Brown, executive director of the FSF (Free Software Foundation) told me before the decision that, "Whatever the Supreme Court decides, it’s clear that this issue won’t end anytime soon. Congress is considering a patent reform bill, and the US government has been working to push its software patent laws to other countries through treaties like ACTA [Anti-Counterfeiting Trade Agreement]." In other words, after this decision, we’re as far away as ever from the complete overhaul of the U.S. patent system that we, software developers and users alike, need.

In the meantime, the patent lawsuits, which have no point other than to leech money away from all of us and penalize people who actually create software, will continue. Thanks for nothing SCOTUS.

A version of this story first appeared in ComputerWorld.

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