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Bilski Hearing Starts Well for Abolishers of Software Patents

Posted in Courtroom, Law, Patents at 3:59 am by Dr. Roy Schestowitz

Bill ski

Summary: Early reports suggest that judges are hostile towards abstract patents like Bilski’s

Bilski can end software patents, as we last noted yesterday. In fact, Biz Journals has just published an article with an ambitious headline:

Supreme Court may invalidate software patents

Acquiring, using and defending software patents has become big business — sometimes playing a vital role in a company’s success — but that could all change if the Supreme Court decides software can no longer be patented.

The first word from the Bilski hearing can be found in SCOTUS Blog.

It took less than two minutes Monday for the high-stakes patent case in the Supreme Court to descend to the level of questioning whether “Lorenzo Jones” could get a patent on one of his hare-brained inventions, if Bernard Bilski and Rand Warsaw could get one on their theory about managing business risk. “Jones,” an old-time radio figure who thought his creations in a garage would bring him fame and fortune, made an appearance in the first question, by Justice Antonin Scalia.

The Legal Times argues that “Justices overall seemed hostile to a broad view of patent eligibility that would include intangible business processes.” To quote more broadly:

The long-awaited Supreme Court patent law showdown in Bilski v. Kappos is over, and it not looking good for business method patents — or at least the one at issue in the case. Justices overall seemed hostile to a broad view of patent eligibility that would include intangible business processes.

A big fan of software patents was actually there, and he independently indicates that the SCOTUS disliked the Bilski patent. This is good. There were also many people in there. To quote: “Now as I was ushered into the courtroom with other members of the press I was surprised to see that myself, and about ten others, were given limited view seating, sitting behind Romanesque columns adorned with velvet maroon drapes with gold braided strands touching the floor.

“US Supreme Court openly takes the piss out of Bilski’s lawyer,” asserts our reader David Gerard, who read some of the above. Here is the transcript [PDF] and another analysis of the Bilski v. Kappos hearing, courtesy of Patently-O. Thanks to Geza Giedke for the links.

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  1. David Gerard said,

    November 10, 2009 at 4:52 am


    In fairness, subjecting an arguing lawyer to that sort of thing is standard in the Supreme Court. They are, after all, there to beat the crap out of your arguments. If you don’t leave feeling like they’re going to have you hanged for the sake of it, they’re arguably not doing their job.

    We’ll see if they subject the defendants to similar.

  2. Jose_X said,

    November 10, 2009 at 10:16 am


    Just posted here http://www.patentlyo.com/patent/2009/11/supreme-court-hears-bilski-v-kappos.html . [There were interesting comments there.]

    Part of the problem is that we are ignoring “to promote the progress of science and useful arts.”

    When trying to answer this question, you have to take context into account, context that includes things like who are the parties being affected negatively and what are the costs involved to the players (and by extension, to society).

    Software enables a much larger group of players to participate than is the case in many other types of fields of engineering/science/manufacturing, and all but one of which who would be affected very negatively by patent monopoly grants. The cost structure for software is very different. The essence of software is very different: you can’t clone physical objects, modify them, and redistribute them at costs of zero time and money.

    Why is this context important? Because in some cases, the gains from monopolies might help to promote the progress — if the costs of the monopolies are in practice not that large; however, when many’s hands are bound, every second that thus passes is a loss. Few have access to steel manufacturing plants independent of patents, for example. Conversely, many have access to software. The worlds best software can be created tomorrow in 10 garages around the world in cooperation through the Internet. And almost surely, they will have to reuse many many ideas from others, ideas that perhaps they derived themselves but which likely could have been the subject of patents within the last few years.

    There are motivations for creating software beyond to make a buck. While true for most items, software can be distributed and consumed at virtually zero marginal cost. This is a characteristic of a “product” unheard of in the past (and enabled by the Internet). If this applied to cogs, we’d find many people creating great new cogs for new uses and giving them away (building a business in some other way.. or as charity) because this would cost nothing except their time. Of course, in practice this is not possible and patents on cogs do get in the way. Yes, software is different. It’s literature and math no matter how many computers it helps drive. Patenting software stifles and hurts many that would otherwise contribute much to society.

    If there are a few special cases deemed worthy, then the government can give prizes or other forms of incentives that don’t curtail the rights of others. Unlike with free public electromagnetic spectrum or with water or land, the use of software can be done virtually by anyone to any degree without negatively impacting anyone else. And where this isn’t the case, exceptions can be made on a case by case basis (eg, yelling “fire” in a crowded location).

    Also, we are ignoring things like the ridiculous broad scope of patents or the fact that with many more inventors participating, even impressive inventions get rediscovered fairly routinely.

    In fact, the patent system (broad scope == more power) rewards those that know the details less well over those that take the time to learn more details. The initial hare to hop along to the USPTO gets dominance over the careful tortoise. And the dominance is very very significant and is over many many unforeseen future inventions over many many years.

    Those not patenting, and there are real costs in time and money to patent, especially if you want it for defensive purposes, are getting a very very short end of the stick against those with patents. A broad patent lets you stop the world. A much more brilliant prior art (without patent) means next to zilch as you aren’t even guaranteed to be able to develop your invention further if patent holders come and get in your way. So they leveraged your brilliance and extra time and effort for $0 and virtually no restrictions while their mediocrity and rush catapults them into monopolies over your progress and over the progress of many other inventors and their unforeseen inventions.

    Getting back to context, the Internet allows collaboration that did not exist before. Patents before made a little more sense. Today, the costs (from monopolies) to impede the otherwise gains from the Internet are that much greater than in the past. Progress is not promoted as frequently as it might have in the past (no matter the invention).

    Today’s patent rules encourage individuals to optimize being first no matter if 1000 similar inventions would occur that year. Even unobvious inventions can get reinvented in spades over the course of a single year, much less over 20 years. And because of the broad scope, that patented vague idea can stop many amazing inventions that would otherwise follow, inventions related only because someone was able to use English to express in concise form the commonalities among that potentially very broad class of inventions. The general terms require much less knowledge than the intricate details. In short, today’s rules encourage patent writers to look at what others are doing (easier to do today because so much gets created and posted on the Internet) and then generalize and beat them all to the USPTO to gain their supermonopolies.

    Finally, I do believe that much new hardware should not be patentable is there is no new technology at play (if there is, then that aspect can get a patent). Merely the expression in hardware (as in software) of ideas without leveraging any new physical transformation is but a rewriting of the same physical storyline. Many people daily add creative actions to their jobs. Should they all get patents (as many of the justices pointed out)? Merely moving circuits around into a new configuration is a new use of an existing technology: the configuration is novel (as is math and literature and many things in life that many people create every minute) but the machine has no novel transformations, etc.. However, we may still allow a limited form of monopoly in the cases of material goods in order to help offset manufacturing costs. Then again, there is first to market and trade secret protections (and copyright protections) already at play. These are motivation to in fact innovate and create new products (even if we only look at monetary motivations). This inventor/manufacturer did not have to invest in new technology but merely produced a new flavor using existing technology.

    Note that software (and eg hardware designed through verilog using existing models and technological processes) works off a fixed abstract machine. There is however some unavoidable degree of engineering around imperfections when new processes are developed. This latter does support that some degree of monopoly protection might help. Otherwise, it’s a trivial step to convert the ideal software creation into a product or into a use. There are no surprises and extra engineering needed when we attach the physical machine.

    Summary: don’t curtail the mind or hand-cuff inventors. Software on a PC and even in new gadgets (depending on circumstances) is a very low barrier playing field. This means monopolies will have huge costs. Gain 10 monopolies (things you could still do without a patent system) but lose many many times that number in things you can’t do but otherwise could were it not for the patents others took out. With a low barrier playing field, patents remove/abridge many many rights; they exact a huge cost.

    All monopolies not justified by the Constitution (eg, if they don’t promote the progress of science and useful arts) abridge individual’s rights and hence violate the 1st, 9th, and/or 10th Amendments.

    I am not a lawyer. A flaw in the above argument should not condemn the rest. I also rushed this post. There is so much to be said over this tragedy that is software patents.

    Thanks for taking the time to hear me out.

    PS: FOSS is a proof of concept of the costs involved and injustices that would occur (to society and to individual’s rights) if we allow software monopolies. While some painstakingly build, others summarize those inventions and hence gain supermonopoly rights. And the bias is clearly towards the wealthy, discriminating against not just those that prefer to develop inventions instead of patents but against those with lower monetary resources.

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