Bonum Certa Men Certa

Freedom Defenders Look at the Glass Half Full in the Bilski Aftermath

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens retires at the age of 90 as the Bilski decision comes out



Summary: A look at the (mostly) positive analyses resulting from the ruling where Stevens was unable to convince a majority of his peers to pull the plug on software patents

THIS is probably our last post that summarises responses to the decision from SCOTUS.



Our goal is to inform readers of interpretations that relevant groups have shared regarding the Bilski case, so it's more of an overview that encourages to read further into the references. As I started before, IANAL (I am not a lawyer), so I will make no attempt to interpret the document myself and insinuate that my verdict is an informed one. Others who are not lawyers/paralegal researchers do attempt to do just that and they drown out the signal.

“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.


Michael Barclay, a lawyer, wrote for the EFF that "The Supreme Court Declines to Prohibit Business Method Patents" (his chosen headline). APRIL, a French advocacy group for Free software wrote about this too and here is the summary from its statement which it titled "Bilski case: the United States starts to clean the software patents minefield"

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.


The FSF's Peter Brown looks at/accentuates the positives:

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?


So again we see an example of the FSF being positive, not negative. It is mostly constructive in its approach, contrary to claims from those who wish to daemonise the FSF. Yesterday we summarised some opinions from the SFLC's Professor Dan Ravicher. There is also a new summary at Groklaw, focusing on Stevens (whose role Ravicher did not particularly like because of cynicism). Pamela Jones argued about Stevens:

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.


Here is another decent analysis from a legal blog. It's outlined as follows: [via Digital Majority]

Sifting through the clues to patentability: Four take-home points from Bilski’s mixed bag



[...]

1) State Street Bank’s “useful, concrete, and tangible result” test is dead.

[...]

2) Abstract ideas likely include “basic concepts” and methods that can be reduced to a mathematical formula.

[...]

3) Parker v. Flook’s “field of use” and “postsolution activity” limitations are alive and well.

[...]

4) Expect more Section 101 challenges, especially at the early stages of patent litigation.


Rob Tiller from Red Hat (he too is a lawyer) wrote about this decision in a rush (Red Hat worked vigourously to eliminate software patents, unlike IBM).

Dana Blankenhorn correctly points out that Florian Müller is unfairly singling out IBM, as though IBM was the sole proponent of software patents.

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.


We have grown increasingly suspicious of Müller. He keeps trying to find 'enemies' other than Microsoft and then incite the "FOSS" crowd (as in "FOSSPatents" @ Blogspot) against that imaginary boogeyman. IBM is a favoured choice for a scapegoat due to its size, regardless of its many contributions to "FOSS", which are very much appreciated. As one commenter puts it in Blankenhorn's blog, "Now, I understand what Free Software is (as in Richard Stallman's stance), and I understand what Open Source is (as in Eric Raymond's stance). And isn't the definition of FOSS is the union of Free Software and Open Source Software - i.e., F/OSS.

"Dana - what do you mean by FOSS? Are you confusing FOSS with Open Source?"

Florian defended proprietary software in Techrights comments; he is not a proponent of the "F" in FOSS, as even his lobby with MySQL helped to show. In many new posts about "interoperability" as the theme in the headlines (the word "interoperability" is used to dodge open standards), Müller continues to sing the same tune this week. About an hour ago he mailed me to incite against Apple at Microsoft's expense. Typical. In his blog he currently promotes action and regulation against Microsoft adversaries.

As the old saying goes, Müller "has got some 'splaining to do". Only a mule would not change its stance when new information arrives and given what we have shown him about Microsoft, he continues to ignore Microsoft's negative effects on "FOSS" (especially the "F", which means freedom).

As the Bilski hype draws to a close, some go further and ask themselves about the impact as far as biotech patents are concerned (think Monsanto).

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.


Patents on life? Why not? It's good for lawyers. Apparently life counts as an "invention" now (if genes are perturbed in scarcely or totally misunderstood ways) to yield seemingly-desirable traits. Just ignore the side effects, much like in the patent system.

Glass filled



Recent Techrights' Posts

Hate Mail From Anonymous Cowards
if this persists, we'll need to escalate
Informal Open Letter to the Lawyer of the Microsofters (on Who's Funding the SLAPPs Against Techrights)
Whenever I ask about the funding they try to change the subject and act all aggressive
Microsoft Lunduke is Just Provoking People for Provocation's Sake
Be forewarned and remember where this guy came from: Microsoft
 
Eventually UEFI 'Secure Boot' Will be Dropped (Users Will Demand Its Removal and Boycott Its Pushers)
we expect OEMs will just listen to users
The Register MS: We Know Slop is a Bubble and Mindless Hype, But We Get Paid to Participate
Call out the culprits
There Are Probably Over a Million Pages in Geminispace
there are two many limitations which merit a mention when it comes to assessing magnitude
Besieged by Plagiarists Who Play With LLMs and Image Fusions
We really need to exercise or use our collective voice to oppose Serial Sloppers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 08, 2025
IRC logs for Friday, August 08, 2025
Gemini Links 09/08/2025: Water Painting and Political Violence
Links for the day
Slopwatch: LLM Sloppers in Google News, LinuxSecurity, and More
they also perpetuate some falsehoods as the LLMs lack any comprehension
Links 08/08/2025: China King of Plastics and US Dictator Plans to Meet Russian Dictator
Links for the day
Gemini Links 08/08/2025: Cracking a Family Member's Password and Overdose of Slop
Links for the day
Red Hat's Latest Talent Hunt, Day Ahead of Mass Layoffs, is Yet Another Microsoft Executive
Red Hat will apparently commence mass layoffs early this coming Monday
Links 08/08/2025: "Quit Facebook" and High Cost of Microsoft/Windows Shown Again ("BlackSuit")
Links for the day
Good Morning, Readers of The Register MS
Things The Register MS could (but does not) cover this morning
Why Gemini Protocol Has a Bright Future
Maybe Gemini Protocol's promise becomes more appealing as the Web turns to slop and bloat
It's a Lot Easier to Participate in the Unethical System Than to Oppose Injustices in It
Going after powerful and high-budget interests is never easy
Microsofters Filed Two SLAPPs Against Us, Now They Cannot Keep Up With Judges' Orders
For over 4 months already their facilitator in London has been under investigation by British authorities because of what's being done to my wife and I
Censorship Regarding Red Hat Layoffs
Talk about this? They'd rather not.
Struggling to Cut Costs, Microsoft Continues Shutting Down and Cancelling Stuff This Month
There are August layoffs at Microsoft
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 07, 2025
IRC logs for Thursday, August 07, 2025
Fake 'Linux' Articles, Written by Bots to Take Traffic Away From Real Articles
LLM slop helps replace information with junk or misinformation
When Google's Googlebombing of "Gemini" Was Not Enough; They Now Also Googlebomb "Gemini Space"?
We know GAFAM not only worries about Gemini Protocol but also attempts to 'infiltrate' Geminispace
The Register MS Promotes Microsoft Slop, Assumes All Readers Use Microsoft Windows
Microsoft really dominates the site
Gemini Links 08/08/2025: KDE/Qt Development and What's Missing From "Retro"
Links for the day
Links 07/08/2025: US Punishes India Instead of Russia, Attacks Law Firms to Prevent Scrutiny
Links for the day
Read Us in Geminispace as Well
it's definitely a lot simpler than using a Web browser
Once a Site About BSD and GNU/Linux, and After Months of Silence, LinuxBSDos.com Comes Back Only as a Slopfarm
very frustrating
Links 07/08/2025: Hardware Wars, Mass Recall of Colgate Total Clean Mint, More Microsoft Holes Found
Links for the day
Gemini Links 07/08/2025: "Right To Manage" and LoRa Analysis
Links for the day
For the First Time in a Month OSI's "OpenSource.org" Blogs and It's Basically a Microsoft Blog Post (Microsoft Controls OSI)
For the first time in a month OSI writes something and it is Microsoft propaganda composed by a Microsoft-salaried operative
Microsoft, Already Borrowing 3 Billion Dollars a Month, is Trying to Cause Many People to Resign
MSN (i.e. Microsoft) and others openly admit it
GAFAM 'Says' is Front Page "News"
The point of journalism is to check and assess facts, not parrot what people and companies merely claim
Links 07/08/2025: Apple Makes False Promises, More Trouble for Microsoft
Links for the day
OSS Didn't Always Mean Open Source Software
"oligarchs all the way down"
The Register MS Does More Microsoft Sez or GitHub Sez (Says) Pieces
60 minutes ago
They Want Activists to Just Barely Walk and Eat, Not Do Activism Anymore
It's sort of like the ending of '1984'
Quit Perpetuating the Narrative of Gemini Protocol 'Dying' (It's False)
The "whisper campaign" against Gemini Protocol
Criticising Social Control Media in Social Control Media
Many people are quitting Social Control Media (fewer of them announce this in public)
Non-Free JavaScript Programs in Banks Aren't Even the Biggest Problem
Technology was supposed to make life easier; in practice, however, for most of us the opposite effect can be observed
Slopfarms Are Typically Fake News
Slopfarms typically relay falsehoods
Gemini Links 06/08/2025: Replacing a Pocket Watch and Buying in Bulk
Links for the day
IBM is Obliterating Fedora
"Fedora releases were shipping with an increasing number of bugs on launch day even while I was using it for a several year stretch."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 06, 2025
IRC logs for Wednesday, August 06, 2025