Summary: In order to bring change through the Bilski case, USPTO Director David Kappos may wish to review feedback from patent critics

IN two prior posts about the latest Bilski hearing [1, 2] we showed that there was substantiable hope for the abolishment of software patents. David Kappos, the new USPTO Director who seems a little hostile towards excessive patenting, finally has a blog and hopefully he will read other blogs too.

Groklaw, for instance, has just shown that Microsoft earns a patent on something that has been around for ages and predates Microsoft's implementation maybe by decades. We wrote about this before (two and a half years ago).

Lordy, lordy, lordy. They have no shame. It appears that Microsoft has just patented sudo, a personalized version of it.

Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft. Here's Wikipedia's description of sudo, which you can meaningfully compare to Microsoft's description of its "invention".

This is why what the US Supreme Court does about software patents means so much. Hopefully they will address the topic in their decision on Bilski. Sudo is an integral part of the functioning of GNU/Linux systems, and you use it in Mac OSX also. Maybe the Supreme Court doesn't know that, and maybe the USPTO didn't realize it. But do you believe Microsoft knows it?

It seems like old news (except the acceptance of this latest one) and it is only to be expected because Microsoft employees are explicitly instructed neither to look at other patents nor consider prior art. Microsoft's practices in this case may not be against the law (patenting without checking), but those instructions are worth criminalising. If lawyers are actively advocating such destruction of the function of the patent system, they no longer deserve a place in this industry. In the i4i case, Microsoft was caught willfully and deliberately infringing patents.

Pointing to this latest case of lobbying from Microsoft's Horacio Gutierrez, Glyn Moody argues that "Microsoft [is] *against* Bilski patent, but thinks software patents are yummy..."

Separately, Moody wrote about In Re Bilski. Here is a key point that our reader Jose X stresses repeatedly:

Remember, the patent system is supposed to encourage innovation of just this kind – not to snuff it out.

Groklaw's analysis of the first Bilski transcript is definitely worth a quick look. Robert writes at Linux Today: "The very concept of 'intellectual property' is an absurdity!

"A human CANNOT 'own' an idea, a sequence of words, a sound, a smell, an algorithm, an equation, a sequence of events (aka, method) - no human thought is 'property' owned by the thinker to the exclusion of all others! The very idea is insanity!"

Bob Robertson points to the paper Against Intellectual Monopoly and quotes: "We show through theory and example that intellectual monopoly is not [necessary] for innovation and as a practical matter is damaging to growth." ⬆

"[Y]ou're creating a new 20-year monopoly for no good reason."

--David Kappos, Director of the USPTO