SFLC Tells SCOTUS, "Software Patents Are Unjust"

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.

Comments

FSF submitted its own brief

[H4x0r Jim Duggan]

• FSF's Amicus Curiae Brief
• FSF's press release
• List of Bilski v. Kappos amicus briefs

    The brief can be split roughly in three. There's the "Interest Of
    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 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.", 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.

Re:indeed

[plover]

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:

"Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material. When a computer program is claimed in a process where the computer is executing the computer program's instructions, USPTO personnel should treat the claim as a process claim. ** When a computer program is recited in conjunction with a physical structure, such as a computer memory, USPTO personnel should treat the claim as a product claim. **"

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.