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.

Good luck with that

[crypTeX]

This is one where I believe that no amount of logic and reasonable precedent will matter. The court will simply not invalidate the basis of an existing industry and it has nothing to do with corruption. No quantity of shine can alter the fundamental nature of this complaint. It won't happen, don't get excited.

Re:Good luck with that

[Runaway1956]

Which industry are you speaking of? Patent trolling? Seriously - those people and corporations with a marketable product will continue to sell their product, until someone comes out with a better product. No industry is going to fail, aside from the patent troll industry. A few lawyers may have to search for a slightly more ethical specialty, like ambulance chasing.

indeed

[wizardforce]

I would go further to speculate that the patent system as it is harms technological advancement more than it encourages it in most industries. The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors. The court costs and inequality of enforcement associated with the system defeat most of its purpose as specified in the US constitution. Software patents are only the tip of a very large iceberg.

Re:indeed

[plover]

The patent system was established with the intent to create temporary monopolies for inventors in order to encourage the development and dissemination of that R&D throughout society. The problem is that too often, it's used to destroy competitors.

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals. They claim to spend anywhere from $100 million to a billion dollars or more to come up with a successful new drug. They patent it. Then, with the required years of development and testing, they get to put it on the market for maybe 12 years or so, without competition, and they charge anywhere from $100/month to $1000/month or more. After 12 years, GenericCo starts selling them for $4/month, so they then have to drop their prices to compete.

For the moment, let's ignore all the criminal and other misdeeds of big pharma (phony studies "proving" generics are bad, misleading marketing to doctors and politicians including golf trips to St. Andrews, selling pointless medicines for not-serious conditions such as "restless leg", "weak boners", etc.,) and focus on just the patent portion of this.

If it took them $500 million dollars to create the drug, and they have only 12 years to sell it, they have to make more than $500 million dollars to make the investment worthwhile. Don't forget, for each useful drug they invent, they also invest millions on drugs that don't work, or drugs that are eventually shown to have toxic side effects and must be pulled from the market. And just about every death that occurs while a patient is taking their drug ends up with a lawsuit that must be defended against.

Without that 12 year period of patent protection, generic drug companies could usually start making cheaper products almost immediately. There would be no reason for pharmaceutical firms to continue to pump a billion dollars into any drug if it's never going to see its return on investment, so innovation would end. The search for a cure for cancer, or of the many chronic conditions such as lupus, muscular dystrophy, etc., would end because there's no profit to be made even if they succeed.

That's the general argument in favor of patents. As a society, we pay the creative and smart people to keep being creative and smart. Do I want them to stop innovating, and not create the cure for whatever disease I'll come down with in 3-5 years? I certainly hope not!

The question here is: does this imply the same for software patents? Not even close. The bar to entering the software market is non-existent. Anyone with a computer and internet connection can download a professional quality operating system and developer studio for free, take online courses in everything from programming and calculus to software engineering, and start innovating almost immediately. It costs them almost nothing to produce and deliver their products, and they have limited to no liability to the users of them. In contrast to the hundreds of pharmaceutical firms, there are millions of developers. Innovation is going to happen continually with or without patents. And innovation is global: what is created in Shanghai can be downloaded in Chicago in seconds.

Even if Bilski is kind of an "end run" around the general issue of patents on software being a bad idea, they should still be prohibited before they make the United States a pariah of developed software.

Re:indeed

[drinkypoo]

OK, let's look at one of the industries most reviled for price gouging in America: pharmaceuticals.

yes, let's. When one of their drugs is about to go generic, or has even just lost its buzz in the media, they make a slightly different version of the same drug, receive FDA approval for the new drug on the basis that it ought to perform similarly to the old drug, and some extremely minimal testing which only must ensure that it is less harmful than a placebo. They then market the new drug as the best treatment for an ailment when in fact they do not really know if the new drug is more or less effective, since the study sample size is not large enough to determine that. Then you get Zyprexa.

There is no fucking way that big pharma deserves any slack. None. Record profits, just like big oil. No fucking way.

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.

Re:I've said it before and said it again

[AuMatar]

Being the first time someone has done something doesn't make it non-obvious.

Problem: Nobody has ever jumped off the roof of my apartment and survived.
Solution: use a parachute.

Is this patentable? No, because people have jumped off high places before, and that's what their answer was. A patent's purpose is to promote the useful arts and sciences. This is their purpose under the constitution. The problem that must be non-obviously solved is therefor the technical one, not the business desire. His statement of the problem was correct- how do you perform purchases without a postpay or confirmation step. The solution was to save that information server side, which is what 90% of programmers would have told you in under 30 seconds of thought. It is therefor an obvious solution.

Re:Scope for arguing about software patents

[H4x0r Jim Duggan]

This isn't so much a business methods case as it is a case of Bilski's patent. The CAFC rejected Bilski's patent and installed a test, and some of the patents that will fail that test are what we call software patents.

There's no "business methods" line that the CAFC or SCOTUS have to stay within, and FSF's request is just for upholding of the CAFC's test and a clarification about when a computer (such as is used by Bilski's patented system) is or isn't a "particular machine".

I take your points, but I still see this as by far the biggest chance we're getting this decade to fix this problem.

Re:I've said it before and said it again

[smoker2]

So no one in the history of mankind ever had a store account ? Identify yourself and the payment is taken care of discretely and automatically ? Just because it's "on the internet" does not make it patentable. And people were doing it before, and people are still doing it now. One Click is just a marketing phrase describing a widely held practice, one that was widely held before the patent was granted. Why do you think there was such a fuss when the patent was granted ?

And using the fact that no-one did it before as a non-obviousness filter is stupid. Most sensible companies didn't do it because of the extra security concerns involved, not because they didn't think of it. As an e-commerce developer at the time, I didn't do it because I didn't like the idea of my details being held by an invisible third party. I therefore didn't place others in that situation.