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06 October 2009, 10:54

US software patent repartee

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The pending US Supreme Court decision regarding In re Bernard L. Bilski and Rand A. Warsaw v. Kappos, in principle about patents on business methods and software, has lead to briefs being filed by numerous companies and associations. Those in favour of extensive patent rights have already taken a position, without issuing major public statements, at the beginning of August. "Amicus curiae" briefs by those who oppose software patents were due to be filed by the end of September. When filing their briefs, the open source companies and free software associations issued press releases in which they demanded a conclusive course correction in the US patent system.

Harsh words came from Eben Moglen of the Software Freedom Law Center (SFLC): "Software patenting has been a scourge in the global technology industries," writes the lawyer. In his brief, Moglen argues that software is nothing more than an array of computer instructions. In the lawyer's opinion, computer programs should be as ineligible for patent protection as mathematical equations or precise descriptions of physical laws. Ciaran O'Riordan of the End Software Patents campaign, which is supported by the Free Software Foundation (FSF), also calls software patents an "economic failure and a hindrance to the progress of the useful arts." Allowing software patents has "resulted in perverse economic effects," as litigation is increasingly targeting not only developers, but also users in the general economy, said O'Riordan.

Red Hat takes the same line and declares that the patent system is discouraging software innovation. According to Red Hat, an entire new class of "patent troll" enterprises has developed who file court case after court case to exploit the flaws in the system. The developers demand that software has to be generally excluded from patentability. In its briefPDF, the Foundation for a Free Information Infrastructure also demands "protective measures" against industrial property rights on computer programs.

The specific topic under discussion is Bilski's application for a temporary monopoly on a process that predicts the fluctuations in consumer demand for general goods like energy, presumably caused by external factors. The US Patent Office had rejected the application, arguing that as a purely economical process without explicit technological reference it isn't eligible for patent protection. This decision was confirmed by the Washington Court of Appeals. The Court of Appeals pointed out that patentable programs or processes need to refer to a specific machine or apparatus, or transform a specific object into a different state or object.

This limitation is acceptable even to big, patent-happy corporations like Microsoft, Philips and Symantec. The three vendors emphasise in their joint statementPDF that nobody, except Bilski himself, is of the opinion that his process deserves patent protection. They also point out, however, that the requirements stipulated by the Court of Appeals are difficult to apply and should therefore not be exclusive. They say that processes that involve a computer should be patent eligible.

Big players like IBMPDF and YahooPDF are clearly in favour of Bilski. According to their briefs, it doesn't make sense in the digital world to put the patentability focus on physical processes that relate to and have effects on the forces of nature. A suitable eligibility procedure should focus exclusively on the "technological contribution" of a potential invention. The German Teles AG has also taken positionPDF, calling the field of patentable modern innovation "inherently dynamic." The German vendor also called for a harmonisation of the US patent system with the patent systems of other countries. The long list of Bilski supporters also includes corporations like Borland and Novartis, associations like the Business Software Alliance (BSA), patent lawyers, and private individuals.


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