The Bilski Decision: Oh Hell Yeah

The Bilski decision means that it's no longer possible to patent ideas. There has to be something concrete upon which to base the idea. This is huge in open source development because ideas were being patented before any functioning software was ever created. Much of open source computing comes from expanding on ideas and making them concrete. Developers have been creating new software only to discover sometimes that the idea was registered somewhere.

Under the law before the Bilski appeal was defeated, if that creation had been patented as an idea, then all the time and effort the developer put in belonged to somebody else. Large business had been buying or negotiating their way through appeasement of the patent's owner, but open source developers don't have the kind of funding it takes to do that. Besides that, it was a stupid, stupid law. Businesses ranging from big tech firms to investment brokers had been patenting thousands and thousands of ideas, and if one was created then they would cash in on the patent. Bilski specifically was a repudiation of the financial services industry.

The case has been chronicled at Groklaw. To someone who is not an attorney, reading the material requires a good legal dictionary. The bottom line is that the ruling is very good for FOSS (free and open source software), because now development can progress unhindered by the legalities of somebody having imagined the end product. In the open source community a software patent conflict was the death knell of many projects.

Red Hat, the big corporate Linux distro, helped immensely with the Bilski decision by filing an amicus brief that said the patent of software was hindering technological progress. From Red Hat:

Last week the Federal Circuit issued a major decision, In re Bilski, concerning the subject matter limits of patent law. The case presented questions relating to software patents, an issue of great significance to the free and open source software community, and so Red Hat filed a brief in Bilski to educate the appeals court about FOSS and its problems with the software patents. In the new opinion, the court cited Red Hat’s brief, but declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software. The war is not over, but the odds of success for FOSS just got better.

As we explained to the court in our brief, everyone recognizes that the purpose of patents is to foster innovation, but the patent system tends to hinder innovation for FOSS. History shows that software innovation happens without patents: prior to the 1990s, there were few software patents, but software developers produced programs that were not only innovative, but world changing. The Federal Circuit decisions in the late 1990s that allowed software patents produced a land grab that has led to more than 200,000 software patents today. Many of these patents are of poor quality, and many have vague boundaries. There is no practical way to “clear” any given program by examining all the possible patents that might apply to the features or functionality of the program. This means that the risk of lawsuits is a fact of life for the software innovators. Plainly this risk has not stopped innovation, but it is an inhibiting factor.

Incidentally, the ACLU also filed an amicus brief in the case. The organization was concerned about infringement on the First Amendment. As the ACLU puts it, the patent claim in the case consisted mostly of patenting speech and/or thought. The amicus says, "The patent cannot be granted without violating the First Amendment." This case brought out the big guns.

Readers of the Wall Street Journal followed the case because it has fairly far reaching ramifications to investors. Investing in the chance somebody else will create something the investor patented will no longer be a safe bet. So sad for the Wall Street guys. They will no longer be able to ruin people by snatching up profits the creators gained honorably. From one Wall Street Journal article on the subject:

That case had granted protection to a system for managing mutual fund accounts. The State Street decision was widely cheered by the financial-services and software industries, among others. But ever since its issuance, the State Street case has been a lightning rod among patent practitioners, with detractors largely arguing that it led to a glut of weak patents.

"This is a pretty clear disavowal of State Street," said Daniel Crowe, a patent litigator at Bryan Cave LLP in St. Louis who was not involved in the case. "It's a ruling against the financial services industry." Mr. Crowe said he did not know what would happen to the business-method patents validated within the last 10 years. "That's definitely an open question."

This failed appeal could be characterized as a victory for struggling software creators over the interests of big money in the United States. Really, how often does that happen? No longer can investment brokers sue a software developer over a patented idea.

One can only wonder if the idea of molecular food synthesis has been patented, or the idea of teleportation. How about a holodeck? The sooner we have holodecks to play in the better. Thus concludes the technology law geek entry for today. All the ladies love technology law geeks. They just can't resist the pocket pen holders.
(pfft)