Wednesday 30 June 2010 by Bradley M. Kuhn
Lots of people are opining about the USA Supreme Court's ruling in the Bilski case. Yesterday, I participated in a oggcast with the folks at SFLC. In that oggcast, Dan Ravicher explained most of the legal details of Bilski; I could never cover them as well as he did, and I wouldn't even try.
Anyway, as a non-lawyer worried about the policy questions, I'm pretty much only concerned about those forward-looking policy questions. However, to briefly look back at how our community responded to this Bilski situation over the last 18 months: it seems similar to what happened while the Eldred case was working its way to the Supreme Court. In the months preceding both Eldred and Bilski, there seemed to be a mass hypnosis that the Supreme Court would actually change copyright law (Eldred) or patent law (Bilski) to make it better for freedom of computer users.
In both cases, that didn't happen. There was admittedly less of that
giddy optimism before Bilski as there was before Eldred, but the ultimate
outcome for computer users is roughly no different in both cases: as we
were with Eldred, we're left back with the same policy situation we had
before Bilski ever started making its way through the various courts. As
near as I can tell from what I've learned, the entire “Bilski
thing” appears to be a no-op. In short, as before, the Patent
Office sometimes can and will deny applications that it determines are
only abstract ideas, and the Supreme Court has now confirmed that the
Patent Office can reject such an application if the Patent Office
an abstract idea when it sees it. Nothing has changed regarding most
patents that are granted every day, including those that read on software.
Those of us that oppose software patents continue to believe that software
algorithms are indeed merely abstract ideas and pure mathematics and
shouldn't be patentable subject matter. The governmental powers still
seems to disagree with us, or, at least, just won't comment on that
Looking forward, my largest concern, from a policy
perspective, is that the “patent reform” crowd,
who claim to be the allies of the anti-software-patent folks,
will use this decision to declare that
the system works.
Bilski's patent was ultimately denied, but on grounds that leave us no
closer to abolishing software patents. Patent reformists will
Well, invalid patents get denied, leaving space for the valid
ones. Those valid ones, they will say,
do and should include
lots of patents that read on software.
But only the really good
ideas should be patented, they will insist.
We must not yield to the patent reformists, particularly at a time like this. (BTW, be sure to read RMS' classic and still relevant essay, Patent Reform Is Not Enough, if you haven't already.)
Since Bilski has given us no new tools for abolishing software patents, we must redouble efforts with tools we already have to mitigate the threat patents pose to software freedom. Here are a few suggestions, which I think are actually all implementable by the average developer, to will keep up the fight against software patents, or at least, mitigate their impact:
I sat and thought of what else I could add to this list that individuals can do to help abolish software patents. I was sad that these were the only five six things that I could collect, but that's all the more reason to do these five six things in earnest. The battle for software freedom for all users is not one we'll win in our lifetimes. It's also possible abolition of software patents will take a generation as well. Those of us that seek this outcome must be prepared for patience and lifelong, diligent work so that the right outcome happens, eventually.
0 Update: I was asked for a longer write up on software patent licenses as compared to mere “promises”. Unfortunately, I don't have one, so the best I was able to offer was the interview I did on Linux Outlaws, Episode 102, about Microsoft's patent promise. I've also added a TODO to write something up more completely on this particular issue.
1 I am not leaving my permissively-license-preferring friends out of this issue without careful consideration. Specifically, I just don't think it's practical or even fair to ask companies to license their patents for all permissively-licensed code, since that would be the same as licensing to everyone, including their proprietary software competitors. An ahead-of-time perpetual license to practice the teachings of all the company's patents under AGPLv3 basically makes sure that code that's eternally Free Software will also eternally be patent-licensed from that company, even if the company never contributes to the AGPLv3'd codebase. Anyone trying to make proprietary code that infringed the patent wouldn't have benefit of the license; only Free Software users, distributors and modifiers would have the benefit. If a company supports copyleft generally, then there is no legitimate reason for the company to refuse such a broad license for copyleft distributions and deployments.
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