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Supreme Court Throws Out Bilski Patent
ciaran_o_riordan writes "The US Supreme Court has finally decided the Bilski case (PDF). We've known that Bilski's patent would get thrown out; that was clear from the open mockery from the judges during last November's hearing. The big question is, since rejecting a particular patent requires providing a general test and explaining why this patent fails that test, how broad will their test be? Will it try to kill the plague of software patents? And is their test designed well enough to stand up to the army of patent lawyers who'll be making a science (and a career) of minimizing and circumventing it? The judges have created a new test, so this will take some reading before any degree of victory can be declared. The important part is pages 5-16 of the PDF, which is the majority opinion. The End Software Patents campaign is already analyzing the decision, and collecting other analyses. Some background is available at Late-comers guide: What is Bilski anyway?"
More analysis of the decision is available at Patently-O.
While Bilski lost, the Supreme Court did not throw out software or method patents. The Supreme Court actually re-opened the door just a bit after the Federal Circuit had left it cracked.
The actual majority opinion is only 16 pages long, and really doesn't say much. They more or less like the "machine or transformation" test that the Federal Circuit had come up with... wherein a method patent must tie any abstract ideas to a "particular" machine or transformation of matter, such that the abstract idea may be combined with other machines or transformations not protected by the patent. However, the Supreme Court now says that while this test may get the job done most of the time, it is not necessarily the only possible test (and they don't say what the other tests might include.
Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.
Nice headline, but it does not reflect the total picture. This opinion is NOT a victory whatsoever for the anti-software patent crowd.
Most important for software patent watchers, the Supreme Court completely ignored In re Alappat and the impact of "Beauregard claims" on the Federal Circuit "machine or transformation" test. That older Alappat decision opened the door for patentee to write claims for software as being articles of manufacter. This "Bearegard" format is basically a sneaky trick... saying that you haven't invented software on a hard drive (which should be analyzed as a method), but rather you've invented a hard drive that has software on it (which should NOT be treated as a method). This is how most software still gets in the door, as the PTO gives it a wink and a nudge doesn't treat it as being "software" at all! This was the issue that software patentees were watching mostly closely, and Supreme Court was completely silent and left the status quo untouched.
While I agree with your other paragraphs, I disagree here for two reasons... Most software claims are not written as Beauregard claims, but as either method or system claims (or both), cause your second clause - that the PTO gives them a wink and a nudge - is incorrect. The PTO most certainly applies the machine-or-transformation test to Beauregard claims, and I've received several application rejections that cite the Fed. Circ's decision in Bilski against them. So, since we still have had to address that test, there's no reason to write a claim as a Beauregard claim when a method or system would work equally well and be arguably broader.
No. 08-964. Argued November 9, 2009--Decided June 28, 2010
Which is about the same as saying ( Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964)),
Here are some quotes from my analysis (I'm the founder and former director of the NoSoftwarePatents campaign):
Again, here's the full text.
While Bilski lost, the Supreme Court did not throw out software or method patents.
If anything they suggested software and method patents have a place in "the Information Age", saying: "The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals."
What they say in the last sentence is actually false: it would not "create uncertainty" but rather almost certainly rule out patentability. This is the court giving a wink and a nudge to the new slavery: ownership of ways of organizing human beings.
Patents in their up-until-recently form were intended as protection for ways of organizaing brute matter, not living things and not in particular not human beings. Patenting business processes and ways of thinking (which in the Age of Functional Programming is transparently all that software is: mathematical functions that can be represented in their entirety as thoughts) is nothing but a "form of tyranny over the human mind."
Business process patents and patents on ways of thinking restrict humans in ways that if they were implemented by any other means would be considered obviously acts of tyranny.
The good thing about the decision is that it suggests the scope of such tyrannical patents is likely to be viewed as narrow, and the minority concurring decision has much stronger language on the meaning of "process" that leaves the door open to sanity and liberty carrying the day in the end.
Blasphemy is a human right. Blasphemophobia kills.