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Red Hat Files Amicus Brief In Bilski Patent Case
I Don't Believe in Imaginary Property writes "Red Hat has filed a friend of the court brief with the Supreme Court in regards to the In Re Bilski case, which has become incredibly important due to the possibility that it could redefine the scope of patentable subject matter in a way that affects software patents. In the brief, Red Hat argues that software should not be considered patentable subject matter because it causes economic harm due to patents being granted with vague subject matter, which makes it impossible to say that a given piece of software doesn't arguably infringe upon someone's patent. They also point out Knuth's famous quote that you can't differentiate between 'numeric' and 'non-numeric' algorithms, because numbers are no different from other kinds of precise information." Read below for the submitter's thoughts on an earlier amicus brief filed in the Bilski case by Professor Lee Hollaar.
It's a pity, though, that they don't seem to directly address Professor Lee Hollaar's brief that gave a hand-waving excuse about the Curry-Howard correspondence being merely 'cosmetic' (whatever that means), even though you can turn ZFC into a program (ZFC being the axiomatic framework in which almost all math is done) and you can turn programs into math in order to verify them. Of course, this is the guy who called the successor function 'essentially nonsense', presumably because he doesn't think that mathematicians can differentiate between assignment and equality the way computer scientists can.
It's a pity, though, that they don't seem to directly address Professor Lee Hollaar's brief that gave a hand-waving excuse about the Curry-Howard correspondence being merely 'cosmetic' (whatever that means), even though you can turn ZFC into a program (ZFC being the axiomatic framework in which almost all math is done) and you can turn programs into math in order to verify them. Of course, this is the guy who called the successor function 'essentially nonsense', presumably because he doesn't think that mathematicians can differentiate between assignment and equality the way computer scientists can.
I'll go buy a copy of Red Hat.
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I agree that software shouldn't be patentable (either directly or through the various loopholes that applicants use to get around the fact that software, when claimed directly, is not a "process, machine, manufacture, or composition of matter").
But in my opinion, this should be a matter of policy motivated by the fact that the rate of improvements in the software arts is far too fast to permit 20-year terms of patent protection, and such a policy has to come from Congress rather than the courts. Current law seems to support the idea of granting patent rights for programs in the context of a "general purpose computer programmed with software" or a "computer readable storage medium embodying software", and I seriously doubt that SCOTUS is going to change that.
What does matter is the quality of the idea and the quality of the process to determine the validity of the patent application. This is where the problem lies today. It's not that people shouldn't get patents for software, it's that the patents that are being granted are of such poor quality that it calls into question the whole system.
In part, I think that the Redhat brief is consistent with this statement--the brief does not think that abstract ideas should be patentable (neither does the SCOTUS, PTO or Fed. Cir). If you read the brief carefully, it argues that patents on software are too vague to be useful and that the proliferation of vague patents makes the current system untenable. Compare that situation to, for example, patents that cover mechanical devices where the elements are discrete things that you can touch.
In patent speak, these are all problems under 35 USC Sec. 112. The problem for all of the briefs like this is that the issue before the SCOTUS is not 112, it's 101. Section 101 defines the "subject matter" of patents. It does not address the "quality" of the patents.
That said, a lot of people have argued in a number of places that really what's happening is that the PTO and the Fed. Cir. want to use 101 as a way to exclude poorly claimed inventions that step closer into the realm of mere abstract ideas and speculation than actual implementation.
But the SCOTUS does not take case to affirm the decision. So one of two things is going to happen: they are going to overturn the Bilski decision as too rigid or they are going to take the opportunity to rewrite the laws of 101 and 112.
Patents last for 17 years; product cycles in software are about 3. In other words, software ideas (even with complete source code) are usually worth zero after 17 years. In fact, almost all software ideas have the following characteristics:
Taken together, these mean that there is no need for software patents at all: people would invent software ideas all the time, even without patent protection (they did so for decades in the past), and they would benefit from them monetarily. Moreover, disclosing your software idea "for free" doesn't lose you much (this idea is not what makes your product unique) and gains you a lot -- it gains you all the ideas that everybody else discloses. The incentive to keep software ideas secret is so low that there is simply no need for patents to force disclosure.