John Paul Stevens retires at the age of 90 as the Bilski decision comes out
THIS is probably our last post that summarises responses to the decision from SCOTUS.
“The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling.”Major publications like the New York Times and Washington Post have both covered this ruling [1, 2], which threw out the patent of Bernard Bilski (that is probably the only fact we know for sure).
The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling. In fact, the decision was a very close one and there was a 4-to-5 vote at end.
Pogson offers some reflections on Bilski. He is a Free software proponent and not a lawyer but a teacher and engineer.
The only way this issue can be settled promptly now is by legislation. M$ and its buddies will be lobbying fiercely to have the patent laws explicitly accept software. Unfortunately for them, all software, except perhaps in a controller where the software cannot possibly have multiple uses, is abstract. That is to say, programmes written in a high-level language do not even deal with bits let alone reality. They deal in variables and data-structures, abstractions in themselves. If the legislators allow software patents, they will have to allow patents on abstractions, something they will not do or cannot. That would throw our thoughts and all freedom under the bus. Indeed, one brief they did not reference was about freedom of speech as software. Patents cannot be allowed to restrict freedom of speech.
The US Supreme Court has issued on Monday a ruling that many people had been waiting for in the so-called "Bilski" case1, regarding a patent on a business method. This decision, even though it does not exclude every software from patentability, invalidates a majority of them, including those patents on computer implemented intellectual methods. It is now time for European lawmakers to halt software patents' proliferation in Europe.
Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue. What's next?
He's actually read and absorbed James Bessen's book Patent Failure and he comprehends the dangers and the costs that such patents present. Thank you, Jim Bessen (and co-authors Mike Meurer, Eric Maskin and Bob Hunt), for all your careful and helpful work, educating judges and lawyers to the dangers of software patents. Significantly, Stevens is joined by Justices Ginsburg, Breyer and Sotomayor. Even Justice Scalia, in a separate concurring opinion written by Justice Breyer, agreed that business methods should not be granted patents. That's five Supreme Court judges. As Tom Goldstein of SCOTUSblog points out in his analysis of the Bilski opinion, that means that business methods patents survived by a single vote. And even at that, the opinion stated that few such methods should be granted a patent.
Sifting through the clues to patentability: Four take-home points from Bilski’s mixed bag
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1) State Street Bank’s “useful, concrete, and tangible result” test is dead.
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2) Abstract ideas likely include “basic concepts” and methods that can be reduced to a mathematical formula.
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3) Parker v. Flook’s “field of use” and “postsolution activity” limitations are alive and well.
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4) Expect more Section 101 challenges, especially at the early stages of patent litigation.
Given the failure of the Bilski case to change the status quo regarding software and business method patents, the search is on for scapegoats, for weak sisters in the anti-patent fight who can be made open to criticism.
It is similar to what happens after a losing political campaign. Those most committed to the cause argue that it’s weak supporters, those willing to do business under the given circumstances, who are responsible for their political failure.
So it is that Florian Mueller of Fosspatents has seized upon IBM.
A Supreme Court ruling June 28 on idea patents disappointed those hoping for an overhaul of intellectual property claims for software, but it may inspire new patent tests aimed at the legally troublesome biotechnology field.
According to the court, the widely followed “machine-or-transformation” test — which limits patents to machines designed for a specific purpose, or processes that physically transform an object — is outdated. This test is also at the heart of at least two other legal cases currently being contested that could shape the future of the biotech business.