17 July 2010

The FOSS Community's Mixed Feelings about the US Supreme Court's Bilski Opinion

After the Supreme Court of the United States decided in its long awaited Bilski opinion of June 28, 2010, that both business methods and software-related inventions may still represent eligible subject matter according to 35 U.S.C. §101, the free and open source software (FOSS) community and other software-affine parties quickly began to express their mixed emotions about the ruling.

In Bilski v. Kappos the Supreme Court held that the machine-or-transformation test is not the sole test for determining patent eligibility but only a useful and important clue or investigative tool. However, a claim may be patent-eligible even if it does not satisfy the machine or transformation test as the Supreme Court held that
the CAFC incorrectly concluded that this Court has endorsed the machine-or-transformation-test as the exclusive test. 
In summary, the ruling can be interpreted such that both business methods and software remain, in principle, patentable subject-matter, as long as it does not relate to an abstract idea but to a concrete teaching. However, what exactly an "abstract idea" is and what tests other that the machine-or-transformation test may be appropriate to determine patent-elgibility of software remains to be seen. From an objective point of view, though, the Supreme Court is more open towards software patents than the CAFC was, as long as the claimed teaching does not relate to an abstract idea only.

Since the Bilski ruling leaves plenty room for interpetation, that may be smartly utilised by both software patent advocates and opponents, it comes as no surprise that the FOSS community (or at least its intellectual opinion leaders) discusses the ruling in a rather controvsal way:

I.   According to The H Blog of Germany-based open source oriented Heise Publishers, hopes had been pinned within the free software community on the court confirming the lower courts' rulings, as this would have opened up a route to challenging software patents which could often fail the exclusive "machine or transformation" test, while Eben Moglen, Chairman of the Software Freedom Law Center (SFLC) and pro bono syndic of FSF said "the confusion and uncertainty behind today’s ruling guarantees that the issues involved in Bilski v. Kappos will have to return to the Supreme Court after much money has been wasted and much innovation obstructed". Daniel Ravicher, SFLC's legal director, added that the court had missed an opportunity to "send a strong signal that ideas are not patentable subject matter" and that the rejection of the Bilski patent "got rid of a symptom, but failed to treat the real cause".

II.   Florian Müller, a prominent anti-patent campaigner now running the FOSS patents blog, found the Bilski decision a major disappointment since it does not invalidate even one patent. While Mr Müller hoped that the Supreme Court would not only uphold the decision of the previous instance but that a reasonably restrictive set of rules would be established that would ideally prevent software patents in the future, the Supreme Court's position is "about the most liberal reasoning that it could have been".

Only new legislation could restrict the scope of patentable subject matter beyond the Supreme Court's permissive stance. The ruling makes reference to an earlier decision, according to which the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed". As a possible reason for that, Mr Müller pointed to the fact that "major corporations particularly from the IT industry issued warnings against any limitations of the scope of patentable subject matter", such that "against that kind of support from industry, it is hard to see how the opponents of software patents could successfully lobby the United States Congress".

Mr Müller concluded that "the free software and open source movements lost something even more important: a rare chance to achieve at least a partial victory", while "the anti-software-patent movement has clearly had a bad year, and it hasn't made any noticeable progress in a number of years".

In a further posting, Mr Müller lamented that the decision "unfortunately [was] a clear victory for those favoring an expansive patent system and the patent inflation it entails" and analysed that
there are many more losers besides applicants Bilski an Warsaw, among which are the FOSS community, SMEs, Linux Foundation, Open Invention Network etc, Red Hat, and IBM. While Mr Müller's list mainly notes politically motivated opponents of software patents, he assumes that while big industry is united behind the patent system, SMEs that build larger programs will suffer, since in a few hundred thousand lines of program code, any single line could theoretically infringe someone's software patent. As to RedHat, he commented that even the "world's leading open source contributer" (as RedHat likes to be seen) contributed to the mess since many of their commercial and political partners are proponents of software patents and they only contribute to about 10% of Linux development, which he considered to be somewhere between "parasitic" and "symbiotic".

In yet another posting Mr Müller sees a "silver lining" in the Bilski decision which, alegedly, is not where most people think, namely in the notion of "abstract idea" which was used by the Supreme Court to reject Bilski's business method claims. According to Mr Müller, the passage on top of page 10 of the Bilski opinion "contains a wonderful passage that is infinitely more helpful with a view to the future than the whole 'abstract idea' thing":
This age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge instriking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.
Mr Müller interpretes the passage such "that the justices [...] understood very well that there may be a problem with software patents", whereas a majority of them didn't consider the Bilski case the right occasion to address this issue and believes that the "oppponents of software patents should focus on that part of the Bilski opinion". 

III.   In the meantine, Rob Tiller, vice president of RedHat, issued his own initial thoughts, according to which the Bilski opinion should not be understood as any kind of approval of software patents, since the case concerned a business method patent, rather than a software patent. Mr Tiller even found some positive points in the optinion, e.g. that machine-or-transformation test wasn't entirely rejected  and that, according to his understading, the rationale against Bilski' invention (abstract idea) "could easily be applied to void some software patents". 

IV.   Another prominent voice of the open source community is the Free Software Foundation (FSF) that saw in Bilski a "wonderful opportunity to increase awareness to the harm caused by software patents" and opines that "the software patent mess that the US finds itself in today is a product of the US judicial system and not Congress" followed by the demand that "we must continue to remind patent examiners that abstract ideas implemented as software on a general purpose computer don't magically transform such ideas into patentable devices". As expected, the FSF does not forget to mention that "the increasing damage being inflicted by monopolies on essential techniques in computer programming will continue to run its course in the US economy" and hopes both that "the number of voices opposing software patents will increase" and "congressional action that seemed unlikely before will receive new attention now".

V.   And, believe it or not, the Foundation for a Free Information Infrastructure (FFII) even was pleased with the Bilski ruling but felt "the Supreme Court did not go far enough in banning all patents on abstract ideas such as software" and, like others, demands that "the legislator must now take over [...] to fit modern software market realities and defend public interest", since "the system is unable to provide a cure".

VI.   Further - rather controversal - statements from the FOSS and Linux community, mainly taken from Slashdot discussions, have been compiled by the Linux Insider:
  • A Beacon of Hope: "Legal threats should become less of an issue after SCOTUS rules on Bilski", predicted computer geek and proud Linux user Robert Pogson, but he had to learn that "the decision handed down last week was not the one many had hoped for".
  • I'm So Ticked Off, I Could Spit: Computerworld UK's technology writer Glyn Moody wrote, "it's a mess [since] the court instead was timid in the extreme [instead of clarifying] the ill-defined rules for patenting business methods and software in the U.S". Similarly, Michael Barclay of the Electronic Frontier Foundation (EFF) wrote that "the Supreme Court regrettably failed to provide guidance in the future about business method patents" and writer and editor Steven Vaughan-Nichols expressed his hopes "that the SCOTUS would do the right thing in the Bilski case and slap [...] software patents down once and for all" an added "I'm so ticked off, I could spit".
  • A Victory: FSF even regarded the Bilski ruling "a victory on the path to ending software patents" and also Groklaw was rather positive about the decision and opined  that "although they didn't specifically decide about software patentability as a category, they did provide some strong hints and some guidance that I view as helpful overall".
  • Linux Could Die by a Thousand Cuts: In the eyes of blogger Martin Espinoza the decision "seems anticlimatic, depressing and predictable" and slashdot blogger Hairyfeet agreed that "Bilski is just a symptom of a much larger cancer" including the fact that patents are "used as a minefield to ensure the little guy can't profit from his work [while] they were designed so the little guy could reap some profit". Since "Linux is [presumably] violating so many patents and copyrights [...] the implications for Linux could be grave" and "all it will take is some patent trolls [...] and Linux could easily die a death by a thousand cuts", he added. 
  • We're a Bit Better OffSlashdot blogger David Masover recognised "a fairly neutral outcome, that is, they haven't done anything to help the patent situation, but they also haven't given any support". Similarly, slashdot blogger Gerhard Mack opined that "we're a bit better off than we were [since] we're at least at the end of having people patent basic computing techniques", and Pogson recognised "a tie, so the status quo survives", since "the majority of justices did not endorse software patents".
  • Toothless Against FLOSS: Pogson also noted that Microsoft's "share price took a hit as those software patents deflated in value [such that] they are now toothless against FLOSS" and that "the courts are now well aware that putting something on a computer is not innovation".
  • A Major Ground Shift:Slashdot blogger Barbara Hudson doesn't "see why everyone is so glum", since the court's assertion that abstract ideas are unpatentable "is a major step in the right direction" and "a major ground shift", since, "if you're a patent troll, your ability to make threats just dropped, [which] in turn makes funding patent trolls more risky". The fact that there is no specific test any more is "too pessimistic", since now "there's even less ability to predict that any particular patent troll will ultimately be upheld in court, [which] is going to hurt their business at all levels".
  • See You in Court: Hudson further noted that without a specific test, "the USPTO now has to be more careful of what they allow to be patented" and trolls will find it hard to argue that their patent should be accepted "without specific guidance", which will embolen businesses "to say, 'see you in court' instead of paying protection money to patent trolls".While the courts "will have to slowly evolve new ways of interpreting the law" everyone opposed to business method and software patents will have "more time and opportunities to drive more nails into the coffin" she added. Hudson concluded that "business method and software patents have hit their apex".

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