[Esp-action-alert] Bilski hearing: software patent abolition possibile

[Ciaran O'Riordan]

The End Software Patents (ESP) campaign has published a hopeful analysis of
yesterday's Supreme Court hearing of the Bilski case.  Although neither
arguing party put software patents on the agenda, the judges posed questions
that raised the issue and sometimes called into doubt the value of software
patents.

       http://news.swpat.org/2009/11/bilski-hearing-software-patents/

ESP executive director Ciarán O'Riordan notes: "There are no clear
statements about software patents, but some comments give us hope, and they
hint that maybe the judges found the amicus briefs interesting."  Examples
include:

* Justice Breyer noting that he's not sure if "with respect to information
  ... patents protection will do no harm or more harm than good"

* Chief Justice Roberts criticizing the USPTO's claim that use of an
  'interactive website' would make a business method patentable: "No,
  no. That's just saying instead of looking in the Yellow Pages, you look on
  the computer; and that makes all the difference to you?"

* Justice Stevens points out that programming a computer is not the same as
  making a DVD player: "the only difference from the old computer is it's
  using a new program. You can't say that's a new machine."

* Justice Kennedy highlighted the natural science aspect of the 1981 Diehr
  ruling: "that looked like a machine, the substance was different before
  the process and after the process"

On the lack of direct comments about software patents, O'Riordan explains:
"This is a case about a business method patent, so we were never guaranteed
to have software considered at all.  The judges did raise the issue, but
Bilksi's representative pre-empted the discussion by arguing that simply
everything should be patentable - even 'a new thing to say on the
telephone'!  The USPTO representative got himself in a knot explaining why
he was dodging the issue.  The judges did seem troubled by the question of:
in a sequence of steps with no physical component other than a computer,
where does the invention lie?  and they noted pretty clearly that allowing a
computer to confer patentability could create a back door that would
undermine existing exclusions."

There is no date for the final ruling, but some suggest it will be early
next year.  It may also lead to proposals to change legislation, so raising
awareness and improving our explanations is very important.  ESP is asking
for your help in documenting the problems with software patents and in
raising awareness in the mainstream media, software press, and in legal
communities.  ESP hosts a wiki and a news site to support these tasks:

                          http://en.swpat.org/wiki
                          http://news.swpat.org

A transcript of the hearing can be read on news.swpat.org:

          http://news.swpat.org/2009/11/bilski-hearing-transcript/

And background information about the Bilski case can be found at:

                   http://endsoftpatents.org/about-bilski