Letters Patent: Bilski Begins

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Although I have been banging on about them for years, patents in general, and software patents in particular, exist for most people only on the periphery of their interests, if at all. There seems to be a view that patents are just an inevitable part of life, like death and taxes. And yet, as many have pointed out, if patents didn't exist, few would think of bringing in such an absurd and inefficient system.

Against that background, it's good to see more and more people standing up and pointing out that the emperor has no clothes. Here are a couple of recent examples that make good points about the current benighted approach.

The first uses the personal experience of a friend to highlight the inequities of patents in the field of computing:

I have a friend who's been working extremely hard on a small software startup for the past few years. He and his partner developed a genuinely innovative, original technology which solves a useful problem for end-users and probably has significant commercial value. The technology has been integrated into a website that is awesomely functional and and even fun to use. (I'd point you there, except that I'm going to discuss legal matters shortly and I think it's better not to identify the parties by name.)

His startup recently got sued for patent infringement by a company that independently developed a product that performs a vaguely similar function. This other company's product is much less sophisticated, and their user-facing site is an ugly, user-hostile pile of crap. The term "search arbitrage" would be a kind word to apply to this other company's product. And there is absolutely no sense in which my friend's work builds on any of this other company's technology.

Now, my friend and his partner have consulted multiple IP lawyers and they've said, "Yep, the law is probably on your side." They have also said, "You're still screwed." The trial would take forever, the legal fees would be ruinous, and in the meantime nobody will invest in a company which has a litigation cloud hanging over it.

Remember, the patent system is supposed to encourage innovation of just this kind – not to snuff it out.

Meanwhile, here's an interesting analysis of why patents are even more irrelevant today:

the original idea of the patent was not about creating a fair and automatic reward system for the inventor. It was more about giving the investor an incentive to disclose his know-how to the general public. And in return, society would not reward the inventor in financial terms but with a time-limited monopoly. But here is the crucial part: the patent concept was not about an inventor’s fundamental right to receive remuneration for intellectual work. It was more about society being prepared to pay dearly (albeit cashless) for new knowledge during periods of scarce know-how and long development cycles.

Today, however, know-how is no longer scarce. Among the 6.8 billion people, there are plenty of intelligent or even genius people, many from aspiring countries like China and India. Each one of them has a desire to ultimately turn his know-how into cash. This can only be done by introducing the know-how to the market. And not as a pure patent exploiter, as, e.g., a manufacturer of tangible goods.

In case of intangible goods, which can be freely copied like e.g. digital products, it will be more difficult, though not impossible. What counts here is the speed of innovation. The one who innovates faster than the competition is able to capitalize on his intellectual property. While patents impede innovation, the cancellation of patent protection would be leading to an innovation race which would ultimately benefit society and the consumer.

These thoughts are welcome, since they add to the debate around patents. But neither they nor my own witterings do much to *change* things. That's why the Bilski case currently before the US Supreme Court is so important. Even though it's not about software patents “as such”, the court's judgement could affect what lawyers like to call the “contours” of software patents: in particular, it might severely limit what is patentable in this field.

Yesterday saw the first day of the Bilski case, and the excellent site Patently-O has posted a useful summary of what was said. Here's a sample:

Justices Sotomayor, Kennedy and Breyer were particularly active, with only slightly lesser participation by Justices Scalia and Ginsburg and Chief Justice Roberts. The Justices appeared to be struggling to come up with the "right" answer and appeared to be mindful of the potential consequences their ruling may have.

Justice Scalia initially indicated that the "useful arts" should mean the manufacturing arts, but not someone who writes a book on "how to win friends and influence people." Justice Sotomayor followed up with a question regarding the difficulty in where to draw the line if there is no tie to science/technology, reciting the parade of horrors of potentially patentable methods for estate plans or tax avoidance. Justice Breyer followed up with a question asking whether the framers of the Constitution intended for every "new" method that helps the business owner to conduct business should be patentable, intimidating that the petitioner's proposed test could be too encompassing and asking for an alternative to limit it to something more reasonable, such as "useful arts." Justice Sotomayor asked whether a method to cure someone that involves only human activity would fall within the Patent Act. In response, Petitioner responded that yes, many of these things, if there were new and useful and met the other requirements of the Patent Act, should be patentable, giving the specific example of surgical methods.

Justice Breyer asked for a proposed "back up" principle if the Court "hypothetically" decided to reject the test that "any steps" may potentially be patentable. Chief Justice Roberts and Justice Kennedy both followed up with comments indicating that certain "ideas" that are abstract should not be patentable, indicating that it would be difficult for him to think that the actuarial tables used in the insurance industry should have been limited to 1 person.

Maybe I'm being optimistic here, but there seems to me considerable scepticism on the judges' part about patenting methods and abstract ideas. That's good, I think, for those of us who want to see software patents scrapped – or at least severely limited – since software is, at heart, just an algorithm, or abstract method.

If you enjoy the to and fro of the legal process, there is a also complete transcript of the day's proceedings. I imagine the Patently-O site will bring us summaries and links to transcripts as the case unfolds, so it's worth keeping an eye on its posts. At the very least, the next few days promise to be both important and entertaining.

Follow me @glynmoody on Twitter or identi.ca.

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