In re Bilski, Software Patents, and FOSS – by “Benjamin S”

Our discussion and readings in class last week talked a lot about software and copyright; everyone by now has a solid idea about what GPL and BSD-style licenses mean, so I thought I’d digress into related part of the topic that we haven’t spent so much time on and that doesn’t look like we’ll be seeing too much of later.

So, yesterday brought exciting news of another amicus brief being filed for In re Bilski, this one by the Software Freedom Law Center (for detailed analysis, Groklaw’s summary is terrific).  For those who don’t know (which I’m assuming is most of the audience, here): Bilski concerns patentability of abstract ideas.  Bernard Bilski and Rand Warsaw  filed for a patent on “a method of hedging risks in commodities trading”.  At no point did the patent application involve an invention of any kind; Bilski claims that his patent application is valid, and that innovation in business is just as valuable and needs patent protection just as much as true technological innovation.  Bilski’s patent was rejected by the USPTO; he appealed to the Board of Patent Appeals and Interferences, where he was also denied; and Bilski at last appealed to the Federal Circuit Court.  Bilski appealed to the Supreme Court and was accepted on June 1 of this year.

Now, Bilski is a very big deal.  The Federal Circuit decision held that the machine-or-transformation test should be the only test for the eligibility of a patent, rejecting several other tests (some of which have been used in other decisions, though never in Supreme Court cases) .  The machine-or-transformation test states that “A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”  At every court, Bilski’s patent has been rejected for various different reasons; the real question is how far-reaching the case will become.

What does this have to do with free software, you ask?  Everything, essentially.  While we’ve focused on copyright in class, plenty of software is patented, too.  Take FAT tables, for one: the file system that’s used on your USB flash drive, that is well-supported and implemented by every operating system that matters.  It’s what lets you plug a flash drive into a Mac, dump some files on it, then go pull those files off on a Windows machine.  Microsoft holds the patent on that one; last year they caused a gigantic ruckus when they sued TomTom (a company that writes Linux-based GPS systems) over violating that patent.  The lawsuit threatened the entire Linux community (because Linux includes FAT support); the buzz died down after TomTom settled the case, but plenty in the free software community are still uneasy.

Most free software types, including the Free Software Foundation, the Software Freedom Law Center, and End Software Patents are opposed to the idea.  Plenty of them oppose software copyrights too, but with the advent of the GPL, the FOSS community has learned how to make copyright work for them, not against.  And software patents have HUGE problems; there is an entire industry known as “patent-trolling”, in which companies do nothing but obtain or file software patents on obvious ideas, and then sue existing companies for patent infringement.  The patent-troll ecosystem is enabled by the deplorable state of the USPTO (huge backlogs, huge rates of patent approval for non-patentable material, technologically incompetent patent inspectors, etc. etc. etc.).  And it’s worst in high-tech.  Major players acknowledge that the system is broken, but everybody still plays the game; big companies throw their weight around, threatening smaller groups (and each other) with ruinous patent-infringement lawsuits, sometimes for purposes of naked extortion.

There are all kinds of reasons to dislike software patents; see the End Software Patents wiki for the laundry list.  While copyright’s not likely to get fixed anytime soon, Bilski creates an opportunity for the court to make a huge improvement.  There are amicus briefs on all sides, and the rosters lined up here have a lot to say about how this might come out.  Larry Lessig gave up on copyright reform because vested business interests are more powerful and better-connected than would-be reformers; but there are vested business interests on all sides of Bilski. There are financial groups (American Express, Accenture) saying Bilski should be overturned and business method patents should be allowed.  Microsoft, Dell, and IBM, among others, argue that business method patents should be dropped but that software patents should survive.  FOSS supporters like the EFF, FSF, SFLC and Red Hat have urged the court to invalidate software patents as well.  It’s likely that any decision the court makes will improve the state of things; here’s hoping they make the right one.