“Patent gives an author the right to sue
anybody whose work matches the original.
That means that you could be doing your own
work, writing code using your own know-how,
and still be sued for patent infringement.”
Bilski and Warren are proposing is patentable—and further, whether business
methods are patentable at all.
In its invitation to submit amicus briefs in
the Bilski case, the Federal Circuit specified
which areas those briefs should address. The
list suggests that the court will be revisiting
standards set in two prior cases: State Street
Bank & Trust Co. and its spawn, AT&T
Corp. v. Excel Communications. Both cases
addressed the boundaries of the “business
methods” exception to patentability.
Those looking to follow the history of
software patents in detail can find all the
chief points detailed in Lee A. Hollaar’s book,
Legal Protection of Digital Information,
posted at Digital Law Online. Hollaar is a
professor at the University of Utah School of
Computing, former chair of the IEEE-USA
Intellectual Property Committee, and a veteran personal observer of many of the sharp
turns that have occurred at the intersection
of software and intellectual property law. He
also filed a brief in Bilski.
How does he see Bilski fitting into the
historical march of software and “business
method” patents? “Bilski involves trying
to get a patent on a technique that doesn’t
involve the use of any technology. It doesn’t
need a computer; it can be done manually,”
says Hollaar. “Because it is to be heard en
banc, the panel isn’t necessarily tied to any
of the past decisions of the court. They could
just as easily say ‘We take this opportunity to
overrule past decisions.’”
Such an outcome would certainly make
the Bilski case a turning point in software
patent law. “And there are some who are
against software patents who are pushing for
the court to do that,” Hollaar says.
Why Get Rid of Software Patents?
If you’re looking for someone to explain
why we should scrap software patents, your
fist stop would have to be the End Software
Patents group. Sponsored by the Free Software
Foundation and run by executive director Ben
Klemens, author of Math You Can’t Use:
Patents, Copyright, and Software, the End
Software Patents website details problems like
the estimated $11.2 billion lost per year to
software patent suits. And if you think that has
nothing to do with you, Klemens has a slant
you might want to consider.
“The ordinary person should care,” he
explains, “because he or she is probably a
software producer or works for one. Just
about every company out there has a website,
and that’s enough to create the possibility of
lawsuits, as we’ve seen by dozens of lawsuits
filed against companies whose website design
and function seems to match a patent. And
that’s just the company’s website.”
So if we drop the patents on software,
where do we go?
Unlike most intellectual property, software
is covered by copyright as well as patents,
and Klemens suggests copyright offers ample
intellectual property coverage. “There is
an expansive copyright law that automati-
