SFLC Tells SCOTUS, "Software Patents Are Unjust" 130
H4x0r Jim Duggan writes to inform us that the day after Red Hat advised SCOTUS that software should not be patentable, the Software Freedom Law Center filed its amicus brief in the Bilski case. "In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those 'tied to a particular machine or apparatus,' or which 'transform[s] a particular article into a different state or thing,' a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs. ... This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas." Groklaw is running the usual cogent gloss with the full text of the SFLC's brief.
FSF submitted its own brief (Score:5, Informative)
The brief can be split roughly in three. There's the "Interest Of [endsoftpatents.org]
Amicus Curiae" section, which is a long description of FSF, to inform the Supreme Court why they should be interested in reading the brief. Then there's the Argument, which has the remaining two parts. The first [endsoftpatents.org] is about the previous rulings which indicate that software has already been explicitly excluded by the Supreme Court. The last part, which starts at "II. For Many Software Developers, The Patent System Is Unjust. [endsoftpatents.org]", deals with how software patents have proved to hinder, rather than promote, the progress of the useful arts - which means they have no valid constitutional basis.
Scope for arguing about software patents (Score:3, Informative)
Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?
Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.
The last paragraph of FSF's Interests of Amicus Curiae [endsoftpatents.org] notes: Notwithstanding the contrary assertion at sec. I.C.3 (pages 36-44) of Respondentâ(TM)s brief, the Foundation submits respectfully that this case is an appropriate one to address patenting eligibility of computer software. Several amici aligned with both parties of this case so regard it and indeed the court of appeals eschewed a categorical exclusion of business methods and, instead, applied the machine-transformation test to a claimed process which was implicitly software-based though not reciting software directly in its broadest independent claim.
Like how the CAFC's machine-or-transformation test excludes some software, the SC can install a different test with broader or narrower scope.
Re:I've said it before and said it again (Score:3, Informative)
I need a method of organizing my open programs...
You could get many answers for that. Are you saying the taskbar isn't obvious? How many people do you ask? What education will they all have? (An interface designer will come up with a different solution than an programmer...)
I still say, no patents, only copyright. Software is like an instruction manual. You can describe many ways to get the same objective and they all look like books. Also, look and feel should be trademarks, not patents.
Re:Talking of abstact ideas (Score:4, Informative)
Bilski is an abstract business method patent, and that's exactly why it's been thrown out by the court of appeals. Yes, they patented software to do the computations, but in the end it's a process more than just software.
(Their process is that of selling a lot of people "fixed cost" subscriptions to a service that can have a variable cost, such as heating fuel in the winter, and then using the leverage of that large group of people to drive down the sellers' bids on the fuel, and making a profit on the difference.)
We're all expecting/hoping that if Bilski is thrown out because it doesn't meet the "tangible transformation of a thing" test that the software component will also be thrown out for the same reason.
Software patents in general kind of just happened by accident. If I recall correctly the first software patent was for a chemical process that used a computer to operate valves to moderate the reaction, and from there the lawyers have just ignored the chemistry part and decided "software is patentable." It's never been challenged like this before, so we're all crossing our fingers and hoping they die and stay dead.
Re:indeed (Score:5, Informative)
If software shouldn't be patentable - which is a different question than "is software patentable" - then Congress is the one that should amend 35 USC 101 to exclude software, not the Supreme Court. Otherwise, they're merely being activist judges.
First, the phrase "activist judges" was created as a political hot-button codeword to try to sway people emotionally instead of rationally. It's a ploy to discredit the work of the legal system using fear and anger instead of logic and reason. It has no place in a legal debate.
And in the case of patents, your argument is not correct. 35 USC 146 clearly states that the U.S. Court of Appeals for the Federal Circuit is to make the decision in case of a disagreement with a ruling of the Board of Patent Appeals. Congress explicitly granted the courts (whether they be "activists" or not) the power to decide these cases. And Bilski is one such case.
Because our legal system is based on precedent, not just on written law, a case such as Bilski can have a ripple effect on other similar decisions. Sometimes I'd rather have a system like the Swiss courts, where each case is tried on its own merits and judged only against the law, not against how the courts ruled on your neighbor's case. But we have what we have.
35 USC 101 is very simple, and says on its face: "subject to the conditions and requirements of this title." That means that it's not simply "processes are patentable", but you have to go through the entire document to make that determination. Reading further, in MPEP 2106.01, you can see some of those requirements that are relevant:
They specifically state here that a program is nonstatutory (not patentable) unless the program is supporting a patentable process. In the case of Bilski, the program is supporting their process. The real question is still if Bilski's business method patent is valid.
Re:Scope for arguing about software patents (Score:4, Informative)
Will this section be worth anything if neither party is actually asking for software patents as a whole to be thrown out?
Yes. The court's job is to decide on the point of law and it's not limited to following the request of either party.
That's true, but they are limited to ruling on the case at hand. SCOTUS has long held that the Constitution limits them to declaratory judgments, that is rulings that involve an actual dispute before them. SCOTUS will not rule that software patents are unconstitutional because they don't promote science and the useful arts in a case about business method patents.
They may, however, rule that machine-independent patents fail that test. However, I suspect they won't, since it's a stupid argument--Congress, not the courts, is given the discretion to choose how to promote science and the useful arts. They may well strike down machine-independent patents, but I highly, highly doubt they'd second-guess Congress based on such a subjective criterion as whether it promotes good stuff, or at least explicitly.
Mind you, even if SCOTUS does lay the smackdown on machine-independent patents, we'll still be in for round two: Whether a compatable computer is a specific-enough machine for patents to stick to it. Unless they rule very broadly, which would be very untypical of SCOTUS, that question will have to go through a full judicial vetting before the question of software patents is settled.