The Bilski Ruling
The Supreme Court ruled yesterday in the long awaited Bilski case, a
case that the Free Software Foundation had promoted as a vehicle for
directly limiting software patents. As such, the decision disappoints,
with the justices providing a narrow ruling and rejecting Bilski's
business method patent.
The software patent mess that the US finds itself in today is a product
of the US judicial system and not Congress. It is therefore all the more
disappointing that the Supreme Court failed to use Bilski to clean house
and remove software from the scope of patentability.
On a positive note, yesterday's majority opinion does stress past
decisions in Benson, Flook and Diehr that clearly limit the patenting of
software. We can read that as a larger rejection of the Court of Appeals
for the Federal Circuit's (CAFC) State Street ruling that gave us the
"useful, concrete and tangible result" test that led to the widespread
patenting of software.
Much depends on how the United States Patent and Trademark Office
(USPTO) implements the court's ruling. Robert W. Bahr, Acting Associate
Commissioner for Patent Examination Policy, has already issued guidance
directing examiners to continue to rely on the
"machine-or-transformation" test to limit the granting of patents on
abstract ideas. We must continue to remind patent examiners that
abstract ideas implemented as software on a general purpose computer
don't magically transform such ideas into patentable devices. If they
did, then Bilski would soon have his patent with the help of a careful
The increasing damage being inflicted by monopolies on essential
techniques in computer programming will continue to run its course in
the US economy, and the number of voices opposing software patents will
increase. Congressional action that seemed unlikely before will receive
new attention now.
There is also hope that with the large increase in software patent
litigation we are seeing, we will soon have a software patent case to
promote to the Federal Circuit. If anything, the Supreme Court's narrow
ruling in Bilski has given the green light to defendants in those cases
to attempt such appeals.
We can reflect that Bilski gave us a wonderful opportunity to increase
awareness to the harm caused by software patents. More scholars, more
developers, more journalists, more politicians, and more patent
attorneys than ever before have heard from our community on this issue.
For now, please help us continue to promote and distribute the film
Patent Absurdity (http://patentabsurdity.com). Join the End Software
Patents mailing list:
And show your support for our campaign by making a directed donation to
further these efforts (http://endsoftpatents.org/donate).
With your help, we will continue to make the public case to exclude
software from the scope of patentability.
Peter T. Brown
Free Software Foundation