Bonum Certa Men Certa

Why In Re Bilski Could Wipe Microsoft off the Map

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens, SCOTUS



Summary: Without software patents, Microsoft would be left toothless and clawless, not just clueless

IT HAS been a while since we last saw an update regarding the Bilski case. Justice Stevens is not around anymore, which is not good news because he was hostile towards software patents in the US. The USPTO meanwhile brags about a rise in 'business' (number of patents), probably refusing to acknowledge that it's not an indication of success, it's not supposed to be a 'meat market' for monopolies. If a university, for example, was to hand out degrees to anyone who requests that, it would devalue those degrees in the same way that patents are no longer a sign of invention. Many patents overlap other patents and disregard prior art. It is a mess. Now, Microsoft may brag that it has over 10,000 patents, but 85% of its patent applications are software patents. Assuming the present is representative of past filings, Microsoft would be left with just ~1,500 (none involving software) if or when In Re Bilski puts software patents right where they belong -- the wastebasket.



So, where is Bilski at right now? According to Legal Times, the sessions may resume next week.

The Supreme Court handed down two relatively low-profile decisions this morning, leaving to another day some of the most-awaited cases of the term like Bilski v. Kappos, the business-methods patent-eligibility case that was argued last Nov. 9. The Court won't be in session again until May 17.


Pogson writes about "problems in Re Bilski for SCOTUS":

The “amicus” briefs were piled high with supporters of software patents. They were all trying to dodge the issue one way or another. Even Bilski and the opposition both skirted the issue as best they could. The patent office does not want business methods patents but does want software patents (It has issued thousands.). One argument was that adding software to a computer made the computer a specific machine even if it did not transform anything more than bits of information. Has “abstract” lost its meaning with people? Information, itself, is an abstraction, the idea that we can have an idea about ideas…


Meanwhile we find Bob Warfield explaining "the problem with software patents" and concluding as follows:

When we give broad protection like patents to software (or potentially music and books), we wall off via monopoly very large amounts of IP territory. This includes territory that the innovator never needed or perhaps intended to protect. Territory that doesn’t matter in the least to extracting the value of the invention as it was originally conceived. Such accidental monopolies are not good for innovation and are just legal lottery tickets equivalent to ambulance chasing. This kind of protection should be eliminated as there is little evidence software patents are stimulating any kind of innovation whatsoever and lots of evidence it hinders innovation.


"[T]here is little evidence software patents are stimulating any kind of innovation whatsoever and lots of evidence it hinders innovation," argues Warfield while the FFII points to Mark Webbink's Web site (he has worked for Red Hat and others) which contains many references on the subject. Webbink explains:

For the first two decades that computers and software were being developed one could not obtain a patent on software. That began to change with a series of court cases in the 1980's. Among others, I do not consider those court decisions to have helped the software industry. Rather they have only served to slow down innovation. On this page I provide some of the content that has brought me to the conclusion that software patents are problematic.


Is there any compelling argument for software patents? (other than giving lawyers/trolls more business)

"Software patents have been nothing but trouble for innovation. We the software engineers know this, yet we actually have full-blown posters in our break-room showcasing the individual engineers who came up with something we were able to push through the USPTO. Individually, we pretty much all consider the software-patent showcase poster to be a colossal joke." —Kelledin, PLI: State Street Overruled... PERIOD



Comments

Recent Techrights' Posts

SLAPP Censorship - Part 115 Out of 200: Spending the Next Decade Writing About SLAPPs and Trying to Fix the System
It's the same industry that got paid by corrupt EPO officials to try to cover up the corruption
 
Greece Ought to Curb the Threat of Social Control Media
its national discourse seems to be run by an American company called Facebook
State of the GNU/Linux Desktop (and Laptop)
The time to advocate GNU/Linux is now
The 'XBox Narrative' Distracts From Destructive Cuts Across the Whole of Microsoft
Microsoft is preparing to lay off a likely record-breaking number of people [...] this isn't just an XBox problem
Microsoft's Stock Fell Nearly $200, But the Real Problems Are Just About to Begin
if they dump slop, what will they tell shareholders?
The Cyber Show on Starmer and Software Freedom
The Cyber Show's Andy has just explained why our departing national leader wasn't all bad
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 22, 2026
IRC logs for Monday, June 22, 2026
Gemini Links 23/06/2026: Girlrotting, Homeworlds at BGA, Slop Ruins Sites
Links for the day
A Lifetime of Whistleblowing
Ellsberg did not have an easy life, but it was a rewarding life with a rich legacy focusing on justice
European Patent Office (EPO) Series: A Man With Many Missions...
Campinos – accompanied by Gilles Requena and Patrice Pellegrino
Links 22/06/2026: Ubisoft Co-founder Dies, Americans Have Turned Against Slop
Links for the day
Links 22/06/2026: "The Sycophancy Machine" and "Port 22 Open for 54 Days"
Links for the day
When People Who Make the Most Money Are the Best "Boot Lickers" (Sucking Up to Jeffrey Epstein's Circle and the Dictator)
Sucking up to rich people may pay off
The Aim is Not Fame
Reposted from schestowitz.com
"Internally Important, Externally Irrelevant": IBM in a Nutshell
Right now its debt spins out of control and its stock spirals down the drain
SLAPP Censorship - Part 114 Out of 200: Thousands of Long Articles to Come, Properly Covering the SLAPP Industry in the UK and Its Modus Operandi
"Stowell described SLAPPs as ‘a stain on our legal system’."
Finding a Way to Get Paid to Improve LibreJS
So now we have more people resurrecting LibreJS and improving it
Microsoft Can't Even Wait Until July, Shutdowns and Layoffs Already Happening
Mashable speak of "a grim picture for the state of Xbox."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 21, 2026
IRC logs for Sunday, June 21, 2026
Gemini Links 22/06/2026: Appreciating Simple Things, Perfect Summer Evening, IRIX, Vim and so
Links for the day
Chad's Move to GNU/Linux or the Point of Exceeding 5% "Market Share"
experienced centuries of being colonised
Gemini Links 21/06/2026: Dating Oaks, Paying With Cash, and "More on Withered Technology"
Links for the day
GAFAM is Drowning in Debt, GAFAM is Clearly Not Sustainable Anymore (It Runs on Borrowed Money and Bailouts)
The war and surrender in Iran will deepen the debt; we'll see the GAFAM reports in late July
GAFAM Was Never an Ally to Europe
Only 1 in 10 Europeans see US as an ally — study [...] military providers in "tech" clothing cannot be trusted
GitHub, LinkedIn, and XBox Will Finish Like Skype (Sustainability Crisis)
Skype should become a verb. When Microsoft 'Skypes' something it means it basically shuts it down with some temporal excuse/s.
Drowning in Garbage: AUR Shows That Too Much Low-Quality Software (Including Slop) is Bad for Everybody
What happened in AUR had happened elsewhere before and will happen again in the future
Links 21/06/2026: EU on Patented (Monopolised) Crops, Microsoft Software "Narcs on You to Your Boss"
Links for the day
Microsoft at 50 Follows the General Trajectory of Skype
How many years does Microsoft have left before payroll becomes impossible?
A Year After a Microsofter Took Over The Register MS It is Effectively a Content Farm With News as a 'Side Dish'
This is not journalism, this is spam
IBM Pays the Media and Cons Some 'Journalists' Into Participating in "Quantum" Spam
"The Boy Who Cried Wolf"
You Don't Need an 'App' for Your Birdhouse (Slopfondlers Come for Birds)
That they sell those things as "AI" really says a lot about how dishonest slopfondlers really are
SLAPP Censorship - Part 113 Out of 200: The United Kingdom is Not Turkey
Turkey is ranked almost worst in the Western World for press freedom
Cybersecurity Does Not Mean Asking Microsoft for Permission to Boot
There were very good and timely reasons to speak about the matter, including impending antitrust complaints against Microsoft
Links 21/06/2026: Bots from Alibaba Do Harm and Many Xbox Games Are Being Cancelled
Links for the day
5 Years After Release of Vista 11 Not Even One in 5 People Use It (in the US)
It doesn't look like Vista 11 will ever be adopted like prior versions and announcing a Vista 12 will mostly upset companies/organisations that only recently "upgraded" to 11
Gemini Links 21/06/2026: Boca Raton, Perfect Summer Day, and LLM Doing Things Poorly
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 20, 2026
IRC logs for Saturday, June 20, 2026