Summary: New Bilski links and another possible linkage between Florian Müller and Microsoft
Noted European patent expert Georg Jakob, who signed onto the amicus brief and coordinated retaining Hopkins & Carley to file the FFII amicus brief had this to say: “Today’s Supreme Court decision highlights the fact that real checks and balances are needed in to stop the patent system from running Amok. We need substantial patent reform in Europe now and real Courts that control the patent office. It might be uncomfortable, but the European Court of Justice can not run away from this responsibility. The core rules of innovation must not be left to apparatchiks, as the U.S.A. has shown us.”
In short, the ruling has done little to clean up the mess the CAFC helped created in 1998, when it decided State Street Bank & Trust Co. v. Signature Financial Group, and opened the doors to patents for novel methods of doing business. That ruling knocked patent law loose from its historical moorings and injected patents into business areas where they were neither needed nor wanted. The results had been nothing short of disastrous: a flood of patent applications for services like arbitration, tax-planning, legal counseling, charity fundraising, and even a “system for toilet reservations.” In its Bilski opinion, the CAFC tried to fix the problem by effectively overruling State Street. Yesterday’s ruling eroded the CAFC’s limits on process patents, and thus missed an opportunity to fix some of the problems with those patents.
So, I already wrote one initial post on the Bilski ruling, where the court basically seems to punt on the larger questions of the patentability of business methods by focusing very narrowly on whether or not Bilski’s specific patent is valid. However, as you read through the “concurring” rulings (pdf), it does seem like many members of the court want, very badly, to outlaw business method patents, but weren’t able to do so this time around. The court really had one clear question to look at here: whether or not the Federal Circuit’s “machine or transformation” test for patents made sense. The court ruled that this was not the only test, so the Federal Circuit erred on that part, even if there were plenty of other reasons to reject Bilski’s specific patent. The majority opinion by Kennedy makes it clear that the court is not making any statements on what is “excluded” from patentability. But the concurring opinions seem to have a serious problem with this. There are two concurring opinions and both express concerns about business method patents.
It is truly tragic that this view narrowly failed to prevail – four judges were in agreement, but five wanted the weaker result that became the main opinion – since it encapsulates all that is wrong with the US patent system’s approach to business method and software patents.
Unfortunately, in the wake of Bilski, it will probably be some years before the Supreme Court addresses this issue again, with the result that many more billions of dollars will be wasted on US litigation around software patents. Worse, the botched opportunity to bring some sense to this area is likely to have knock-on effects around the world, which means that we will all suffer its negative consequences.
As an entrepreneur/inventor/person who raises money for my companies, the patent system is a rich man’s game, and as I learned not to play poker with millionaires because they will simply raise the stakes until I can’t keep up, large corporations will eventually raise the litigation stakes until I lose.
The notion of Free Software is fundamentally incompatible with software patents. Ciarán O’Riordan, the director of the EndSoftPatents.org campaign, made a statement at a European Commission hearing four years ago where he accurately said that software patents and free software don’t mix whether you cut the price of a patent in half or double it.
But the other part of FOSS, the open source community, is equally affected. While it doesn’t emphasize the concept of freedom as much as Richard Stallman and his followers, I know many open source advocates who are no less opposed to software patents than RMS is.
I venture to guess that the Bilski ruling will represent an obstacle to GPLv3 adoption. I wish the whole world could accept the patent clause in GPLv3, which is meant to counter patent licensing deals by FOSS companies and other entities, but under the circumstances it will be very hard to convince businesses and other contributors to FOSS development that this our-way-or-the-highway approach works in the world we (currently) live in.
Yesterday the Supreme Court issued its decision in the highly anticipated patent case, Bilski v. Kappos. Contrary to some expectations, the Court decided Bilski on narrow grounds, leaving the state of biotechnology patents largely untouched.
Bilski v. Kappos was the most-anticipated Supreme Court patent case in a generation. And when it was finally handed down on Monday, it turned out to be the most anticlimactic.
There’s been a raging debate about software and “business method” patents since an appeals court gave the green light to them in 1998. Many people, myself included, hoped that the Supreme Court would place new limits on such patents this term.
But Bilski turned out to be a bad test case. The applicant, one Bernard L. Bilski, tried to patent a “method for managing the consumption risk costs of a commodity.” If that doesn’t sound like the sort of thing patents are supposed to cover, that’s because it’s not. Almost no one other than Bilski and his attorney believed that he should get his patent.
Ultimately, Bilski v Kappos says more about how patent law is made in the United States than about patentable subject matter. By setting the clock back to 1982, the Supreme Court is telling the Federal Circuit to try again in devising workable rules for patent law. The Federal Circuit wrote an opinion that was goading the Supreme Court to address the issue of patentable subject matter after nearly three decades. The resulting opinion raises some fundamental and unsettled questions and, unfortunately, gives us the same, old answers.
The Supreme Court of the United States delivered its ruling on the Bilski landmark case yesterday. A split court issued a very narrow ruling, avoiding broad decisions on patentability. The Court explicitly refused to weigh in on the scope and limits of the patent system, stating that “nothing in this opinion should be read to take a position on where that balance ought to be struck”.
“We are pleased, but we feel the Supreme Court did not go far enough in banning all patents on abstract ideas such as software and business methods”, comments Benjamin Henrion on the outcome. The President of the Foundation for a Free Information Infrastructure (FFII) has a 10 years record of promoting patent reforms in the European Union, often to prevent “deterioration to US patenting standards”.
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 afraid that at the end of this brief train ride, my only firm conclusion can be that the real winners here are patent lawyers- this decision creates no new certainties, only uncertainties, which will encourage patenters to spend more money patenting things, and the rest of us to waste time and energy worrying about the problem- time and energy that should have been spent on innovating. But this is a long, multi-layered ruling, and will require a lot of time for the full implications to be truly understood, so take this one-train-ride blog post with a large grain of salt Hopefully more writing tonight/tomorrow.
Reaction from the Software Freedom Law Center (SFLC) was immediate. Eben Moglen, Chairman of the SFLC, said “The confusion and uncertainty behind today’s ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed”. Daniel Ravicher, the SFLC’s legal director said the court had missed an opportunity to “send a strong signal that ideas are not patentable subject matter” and that the rejection of the Bilski patent “got rid of a symptom, but failed to treat the real cause”.
Attributable to Eben Moglen: “The landscape of patent law has been a cluttered, dangerous mess for almost two decades,” said Eben Moglen, Chairman of the Software Freedom Law Center. “The confusion and uncertainty behind today’s ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed.”
Given the support of major corporations like IBM — and, perhaps, a “reformed” Microsoft — for patent protection, Mueller lamented that “it is hard to see how the opponents of software patents could successfully lobby the United States Congress.”
Watch Microsoft lobbyist ACT recommending Florian Müller after he privately pointed to their analysis/jubilation. Yes, a Microsoft lobbyist says that Müller “delivers the most insightful analysis of who lost in Bilski”. It’s just a tad interesting. He is now on some sort of a mission to “expose” Groklaw. These are “a couple thousand words on Mueller’s threat to “expose” groklaw’s “bias” in banning certain users (the specific case was Jay Maynard – Hercules maintainer),” writes Barbara. “I think the picture is apropos ” █