Bonum Certa Men Certa

Experts Indicate That re Bilski Does Impact Software Patents

Gavel
Case closed, now what does this mean?



ONE question that has been asked regularly since the ruling was announced is: what impact -- if any -- does this have on software patents? According to extensive reading, it seems more or less agreed upon that software patents are affected too, but only to an extent.



For future reference, in addition to our older posts about the re Bilski decision [1, 2, 3, 4, 5, 6], here are many more: [mostly via Digital Majority, which is an excellent resource]

1. In regards to In re Bilski

On the key question of when information becomes a machine, the ruling does provide some clues: “First, [...] the use of a specific machine or transformation of an article must impose meaningful limits on the claim's scope to impart patent-eligibility. [...] Second, the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity.” For more on extra-solution activity, have a look at my law review article (PDF) that focuses heavily on the idea.


2. Reactions to the Bilski decision begin to roll in

Not being a US patent attorney and not possessing any expertise in US patent law, I am not in a position to comment on the CAFC’s Bilski decision handed down yesterday. However, I do know a few people who are, so I have been in touch with them to get their reactions. Below is what I have had so far. I will continue to add to these until the beginning of next week (3rd/4th November will be the cut-off).


3. US court narrows scope for business method patents

"While looking for 'a useful, concrete and tangible result' may in many instances provide useful indications of whether a claim is drawn to a fundamental principle or a practical application of such a principle, that inquiry is insufficient to determine whether a claim is patent-eligible," it said.


4. Bilski: Almost the Big One

The big question is what effect, if any, this decision will have on the current referral of a “point of law” concerning software patents by the President of the European Patent Office (EPO) to the EPO “Enlarged Board of Appeal”, something I wrote about earlier this week. It would be ironic if, at a time when the US courts begin to move away from patenting software “as such”, the EPO started allowing precisely that through a relaxation of its own rules.


5. So are software patents dead or not?

My opinion is that it's going to get harder and harder to patent anything. Of course there will be a big push back from business, so this won't happen over night, but I think the concept of patents will eventually disappear entirely.


6. US Court Throws Out Most Software Patents

The IT Examiner also observes that "Microsoft has a problem" and that "Much of the patent portfolio of some of the world's biggest software companies has become worthless overnight, thanks to a ruling yesterday by the US patent court."


7. Court Reshapes Patent Reform Debate

In a ruling with huge implications for the technology sector, the U.S. Court of Appeals for the Federal Circuit said Oct. 30 pure software or business method patents that are neither tied to a specific machine nor change something into a different state are not patentable.


8. In Huge Shift, Court Ruling Effectively Denies Software-Only Patent Rights

The case originally centered on a patent for "a method of managing the risk of bad weather through commodities trading"—which falls more under the "business process" bucket, but the same ruling effectively makes patenting a specific software process impossible. The previous ruling allowed such patents, so long as computers were involved and the process produced a "useful, concrete, and tangible result." This ruling rejects that premise, favoring instead an older test that only allows patents for things involving an actual machine or a transformation of a tangible object into a different state.


9. Professor Collins: In re Bilski: Tangibility Gone “Meta”

Although they are both legitimate questions, this short comment addresses neither whether there is a legitimate statutory basis for this test nor whether Supreme Court precedent should be interpreted so as to mandate (or even support) this test. Rather, it focuses solely on the criteria that the court offers to draw the line between patentable and unpatentable transformations. The Federal Circuit has added a new twist to the tangibility test that has for many years played a role in determining patent-eligibility: the tangibility test has gone "meta." The tangibility of the formal data that is actually transformed by a method of processing information is not relevant to patent-eligibility, but the tangibility of the things that the data is about—the tangibility of the informational content of the data or the things to which the data refers—now appears to be dispositive.


10. Bilski: What It Means, Part 1 -- Red Hat on What It Means for FOSS

means to everyone: You can't get patents any more on a pure mental process. You can no longer patent a process that you can think through all in your mind. In other words, abstract ideas are not patentable. There has to be either a particular machine or a transformation in the process. So pure "ideas" or "mental processes" are over. That means most business methods patents are no longer valid because they are outside the parameters of what is eligible for patenting. In simple terms, it means this:



The End for the stupidest of the stupid patents.



Yay! It means that the tide is turning. There could still be an appeal of Bilski, and even without one, there are ways to chip away at this decision's new standard for patentability, to try to get over the new turnstile, so to speak, and strategies on how to do that have begun already. I've spent the days since the decision issued researching for you, so I can explain Bilski to you. There is too much material for just one article. So, I'll break it up into parts. My purpose is to make sure you understand fully, so you can be helpful with your ideas and so you can explain this issue to others, so they understand what is involved for FOSS. If there are parts you don't understand, ask. If I don't know the answer, I can ask someone.



11. US patent ruling bodes well for tech



The case in question was rejected because the patent at issue was a process not tied to a "machine", which is one standard for patentability.

[...]

"The standard articulated in this case should limit the outrageous business method and software patents that we have recently seen, without undermining the incentive to innovate in these areas."



12. In re Bilski and the future of business method patents

Duffy stressed that the patent at issue in State Street, the 1998 decision that gave the OK to software and business method patents, would be fine and dandy under the new test—it's just the test itself that changed. The court maintained the "core holding" of State Street, said Duffy, merely changing the "verbal formulation" required. (And the number of BM patents that will still be strong?—Many! Most! Almost all!)


13. CLE: How to Draft Software Claims under Bilski

Going forward, I do not believe that these limitations will have a significant impact on a skilled practitioner's ability to patent software innovations.


14. Patent Court: You Can No Longer Patent Thin Air

In essence, the ruling means that business ideas in and of themselves aren’t patentable. In addition to Amazon’s “one-click” patent, which is the concept of purchasing something via credit card by just clicking a single website link, Friendster’s patents on social networking also come to mind as being unpatentable based on this judgement. That patent covers a “system, method and apparatus for connecting users in an online computer system based on their relationships within social networks” and a “method of inducing content uploads in a social network,” amongst other claims.


15. Federal Circuit Enforces Limit on Business Method Patents

The result: While the court did not categorically exclude business method patents, it held fast the idea that any method, whether business-related or not, must be tethered to a machine or some sort of physical transformation, says Stephen Maebius, a partner at Foley & Lardner.


16. Court limits 'business method' patents

The Stop Software Patents initiative has found a new video from the German television where the subject of sofwtare patents is covered.

German television 3sat has a reportage about software patents. A german programmer highlights that software patents ruin investment in software development.


Here is another new item which discusses both BM patents and SW patents, the context being patents relating to a marriage portal.

"The best way to prepare to be a programmer is to write programs and to study great programs that other people have written."

--Bill Gates, Free software advocate???



"Thanks to Mr. Gates, we now know that an open Internet with protocols anyone can implement is communism; it was set up by that famous communist agent, the US Department of Defense."

--Richard Stallman

Comments

Recent Techrights' Posts

Exemplary List of Things That Are Not Artificial Intelligence or Even Intelligence
The "age of AI" or "era of AI" or "AI revolution" mostly boils down to rebranding, just like "the cloud"
GitHub Copilot Can Cause the Bankruptcy of GitHub to Come Sooner and GitHub to be Shut Down Just Like Skype
Some publicly available information suggests that even for each paid subscriber for plagiarism (LLM 'coding') GitHub Copilot still loses more money than it makes
Our Lawsuits Against the 'Cancel Mob' (Ringleaders) Helped Reduce Anti-Free Software Online Abuse
That's not to say that lawsuits are the best way to handle terrible people. But that can help.
The Two Lies Microsoft is Telling in "the News" This Week (to Distract From Layoffs and Decreased Interest in Slop/Chaff)
Microsoft is run by liars and frauds who SLAPP critics
Tux Machines Already Destroyed SLAPPs
Attacks on the mere publication of GNU/Linux news won't be tolerated
 
Links 11/07/2025: Intel Collapsing and Microsoft Resorts to Bribery to Push Slop Via Obligatory Education
Links for the day
The EFF Sided With the Team That Strangles Women and Tells Women to Kill Themselves
They say that apathy and inaction are a form of a "stance"
"Nat [Friedman] and [the Serial Strangler From Microsoft] Were Always Exceptionally Close," Says Former Housemate and Colleague
Now Alex (hiding behind another name when that suits him) not only attacks women but also people who merely report what he did to women
New Letter From the European Patent Office Explains How the Office Plots to Grant Many Illegal Patents, a Self-Fulfilling Prophecy of 'Growth'
Open letter to Mr Rowan (VP1) and Mr Aledo Lopez (COO)
Abuse of Process
5RB is employing people who help violent men
What Microsoft's Nat Friedman and Microsoft Lunduke Have in Common
"Get in da car; No time to explain, loser"
Microsoft and IBM Don't Have Much of a Future (They Mostly Pretend at This Point)
IBM and Microsoft are in some ways alike but in many ways different
It's Not Just Twitter (or X.com) That's Dying, Microsoft's Equivalent is Dying Also
Unable to find a business model
Wayland is Bad for the Planet
If you use Wayland, it'll take you longer to accomplish tasks and you will consume more energy (or battery life)
Legitimising Those Who Sabotage You
Microsoft is a very malicious company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 10, 2025
IRC logs for Thursday, July 10, 2025
On Microsoft Layoffs
we might be looking at about 60,000 Microsoft layoffs since 2023
EPO Management Already Breaks Its Own Promise (Lie) on "Bringing Teams Together"
This gut-punching move happened just 2 days ago
Gemini Links 11/07/2025: Occupation of 2025 and "Old Man Yells At Soundcloud"
Links for the day
Tomorrow is the Last Day of the Fund-Raising Campaign of the Free Software Foundation (FSF)
They will probably extend the date, as usual
Fixing Patents in Europe, Little by Little (by Transparency and Reporting of Suppressed Facts)
Tomorrow and throughout the weekend we shall focus some more on the EPO
PCLinuxOS is Available for Download Again
PCLinuxOS is important to us also because its founder, back then the partner of Susan, helped create Tux Machines more than 21 years ago
Links 10/07/2025: Microsoft E-mail 'Services' Collapse Again, "Yet Another Strava Privacy Leak"
Links for the day
Gemini Links 10/07/2025: Automating Git Repo Updates and Small Web 'Zine'
Links for the day
GNU/Linux Leftovers
mostly Linux stuff
Audiocasts/Shows: Going Linux, FLOSS Weekly, and RHEL Clones
3 new picks
We Are Already Fighting - With Considerable Success - SLAPPs in the UK
we intend to tell the full story
Bullies With Pens and Papers (or Apple Macs With Templates)
Not all barristers are evil, but there are perhaps "rotten apples"
Slopwatch: webpronews.com, linuxsecurity.com, linuxjournal.com
a pile of trash disguised as 'articles'
Links 10/07/2025: Linda Yaccarino Divorces MElonazi Site, Wildfires Hit Syria
Links for the day
The History and the Policy of the EPO's Stance on Breastfeeding (Corporate Monopolies Versus Babies' Health)
"The Case for Introducing a Breastfeeding Policy at the EPO"
Gemini Links 10/07/2025: Inventing Chords and "Nightmare Boss"
Links for the day
Igor Ljubuncic Once Again Shows That for Technical Reasons Wayland Still Sucks, Performs Considerably Worse Than What Existed for Decades
That is aside from compatibility factors and other crucial factors
Links 10/07/2025: "Apple Vs The Law" and Twitter Became Full Nazi Bar
Links for the day
Unable to Find Anyone to Work as Their Media Lawyer, Brett Wilson LLP Will Continue Losing Female Staff
What sort of sick person would wish to join Brett Wilson LLP to carry this baton?
Microsoft-Sponsored Propaganda Site Has Removed False 'Hit Piece' About Dr. Stallman (With Fake and Misrepresented Imagery) But Only After 4 Years
So they only removed that page some time around 2025, i.e. about 4 years after it had been published
Always Check Your Inputs
Garbage in, garbage out. Or wrong assumptions, wrong corollary.
Dan Neidle Said That Tax Evasion Facilitator Mr Zahawi (Working to Silence Bloggers Through Brett Wilson LLP) Targeted Not Only Him (But The Others Kept Quiet)
"Mr Neidle said after repelling Mr Zahawi he was contacted by bloggers and tweeters who had received similar threats. They deleted their work “and in most cases never commented publicly on anything again”."
SLAPP Funding Transparency Urgently Needed in the UK and Elsewhere (in Practice, Not Just in Theory)
Writing about crime - including Microsoft crime - is not a crime
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 09, 2025
IRC logs for Wednesday, July 09, 2025
Elodie Bergot Still Doing Illegal Things at the EPO, Based on the Local Staff Committee Munich
They keep taking away from the staff while compelling the staff to do illegal things
Gemini Links 09/07/2025: Extreme Testing and Golang Documentation in Geminispace
Links for the day
Vice President of the European Patent Office (EPO) Complains That Techrights Gives Visibility to Legal and Technical Issues at the EPO
"Follow-up on enquiries relating to Dir. 1218 and 1001"
Slopwatch: linuxsecurity.com and Various Slopfarms That Lie About "Linux" and Are Promoted by Google News
Google does not seem interested in tackling this problem
Links 09/07/2025: War Updates and Microsoft Moving to India to Cut Costs
Links for the day
GNU/Linux Was Always a 'Movement' of Inclusion of Tolerance
Even the licences themselves remove access barriers
Links 09/07/2025: "Subprime AI Crisis" and "OpenAI May Be in Major Trouble Financially"
Links for the day
Huge Piles of Legal Papers ('Paper DDoS') Do Not Impress Judges and Regulators
they just make judges and regulators even more suspicious of the eagerness to resort to 'paper DDoS'
Brett Wilson LLP Sent Over 5 Kilograms (or Over 12 Pounds) of Legal Papers! Because Writing About Microsoft Abuses is 'Illegal'.
How do you guys sleep at night? On a big pile of Microsoft money?
Extremism as a Weapon Against GNU/Linux (Microsoft Lunduke)
He ought to know the Halloween Documents. Wasn't he a Microsoft employee when these came out?
Lunduke Isn't Even Hiding His Anti-Linux Agenda (From "Linux Sucks" to "Linux is Pedophiles")
just trying to make a lot of trouble
Some People Use Computers to Get Actual Work Done
Tolerance and inclusion must extend to acceptance that some people don't agree with you, might never agree with you, and imposing what allegedly works for you on them is unreasonable
Example of "Old" Things That Still Work
The notion that something being "old" implies it must be discarded is typically advanced by those looking to sell more of something
Some Scheduled Maintenance Later Today
Typically the most vulnerable service during short interruptions is IRC
Computers Are Just a Tool
People don't get married because they love weddings, folks don't join the army because they love war, and most drivers don't drive to work because they love cars
Apple Way Past Its Prime
Apple deserves a decline
The FSF's SysOps Team Recovered From Serious Hardware Issue Within Hours
About half a day ago I noticed that all/most GNU/FSF sites were not reachable and thus reached out to a contact for any details
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 08, 2025
IRC logs for Tuesday, July 08, 2025
Slopwatch: Turning Bugs Into FUD About "Linux", Getting Basic Facts Wrong
all the screenshots are of fake articles; we don't want to link to any
Technical Reasons, Not Politics: With Wayland "it feels a lot like Linux from 20-25 years ago, which is horrendously frustrating, because it feels like we wasted one or two decades of progress and stability"
Lately, quite a few benchmarks were published to show Wayland compares poorly compared to what we had
PCLinuxOS Recovering From Fire
It looks like a nightmare scenario, where even backups onsite get destroyed
Links 09/07/2025: More Heatwaves, Officials Culled in Russia
Links for the day
Gemini Links 09/07/2025: XScreensaver and Resurrection
Links for the day