SFLC Provides Background Info for Bilski

by Joe Brockmeier - Nov. 06, 2009Comments (5)

The U.S. Supreme Court will be hearing opening arguments on Bilski vs. Kappos on Monday, November 9th. Not surprisingly, many open source advocates are on the edge of their seats because it's an opportunity for the Supreme Court to decide that software is not patentable. Confused about the details? As part of its mission to advance Free, Libre, and Open Source Software (FLOSS) through "law-related services," the Software Freedom Law Center (SFLC) has provided a backgrounder with information on briefs filed by parties of interest to the FLOSS community.

The page also provides additional resources discussing the Bilski case and its implications for FLOSS. The Electronic Frontier Foundation (EFF) has a good summary of the case, and describes Bilski as "an appellate court case that called into question business method patents and curtailed efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski challenged the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading."

Even though the case is not specifically about software patents, it created a test for patents that is broad enough to restrict granting patents on some software as well. Some of the amicus briefs have been filed in support of the respondent (Kappos), and some are going a step further and asking the court to affirm that software is not patentable.

According to the SFLC, 66 amicus briefs have been filed with the court. Of the briefs filed, 24 side with the U.S. Patent and Trademark Office (USPTO), 16 are against it, and 26 of the briefs are in support of neither party.

IBM, for example "walks a fine line between opposing patents on business methods and supporting 'patent reform' as applied to software" with its brief, which isn't surprising for a company that simultaneously has a huge interest in FLOSS and is the world's largest patent holder.

Red Hat and the IEEE have weighed in heavily in support of affirmance, meaning that they are asking the court to go a step farther and affirm that decision smacks down software patents as well as business method patents.

It's hard to tell which way the court might side, and it won't be decided on Monday. However, if the court decides that software is not patentable it will be a huge win for FLOSS.

Joe 'Zonker' Brockmeier is a longtime FOSS advocate, and currently works for Novell as the community manager for openSUSE. Prior to joining Novell, Brockmeier worked as a technology journalist covering the open source beat for a number of publications, including Linux Magazine, Linux Weekly News, Linux.com, UnixReview.com, IBM developerWorks, and many others.

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by an anonymous user on Nov. 06, 2009

The court will hear Oral Arguments, not opening arguments...

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by an anonymous user on Nov. 06, 2009

Like a piece of used floss this FLOSS is of no use to anyone. The SFLC knows that its fluffy "FLOSSy" is DOA. The SFLC also filed an amicus brief in this case; it is a joke. It first completely ignores the questions before the court, doesn't even cite 35 USC 273 (a key point in the case) and then tries to mislead the reader with a total misquote from the Microsoft v. AT&T case... from then on it goes downhill...way downhill...

So you fluffy FLOSSy enjoy your moment while you can: LONG LIVE SOFTWARE AND BUSINESS METHOD PATENTS.

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by Bradley M. Kuhn on Nov. 07, 2009

Not sure I would call IBM's brief "walking a fine line". It's more of way across the line on the pro-patent side. They obviously don't want pure business method patents because they don't have many themselves, but they definitely want their gigantic arsenal of patents that read on software to remain full. It's like wealthy people weighing in on estate taxes; I care a lot more what the poor have to say about it than the rich.

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by an anonymous user on Nov. 09, 2009

Who funds EFF? Is it the same large firms who time and again are caught infringing others patents?

Patent reform is a fraud on America...

Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

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by an anonymous user on Jan. 14, 2010

Why would you want patent reform ?

I mean, is it to allow you to use inventions or idea's of someone else, for you're own profit ?

Sure, why not work for bank theft reform, im sure it's much easier to rob a bank, and take other peoples money without putting in the effort to EARN that money.

If you come up with an idea, that does something better or different, that can potentially make money, and improve the lives of people you have every right to profit from that idea.

It's how progress works, taking someone elses idea's that have the ability to generate sales and profit, stealing that idea, and using it for yourself is theft.

Patent reform, would do only two things, it would force those who have patents to hide their innovations, and would halt technological progress.

would of Ogg Thobis been developed if it was possible to 'lift' patents of other encoding methods ?

It does appear that FOSS want a free ride, they want to be able to use other peoples innovation for their own gain.

Good idea's, and inventions are incorporated into products BECAUSE there is protections in place for theft.

Not in spite of it, patents ensure or reduce the development cost risks for products by ensuring profit's in the patented item is of value to consumers.

So sorry, patent reform will not help foss, and pushing for it really is a bad look, it's a tacit admission that you're got no good idea's, so you'll happily use everyone elses good idea's.

Just because you like to give away you're crown jewles, does not make it right to expect or demand everyone else does the same. It's not working for FOSS, this "follow the crowd" concept, you have to be technical leaders, not followers.

More away from the clone of UNIX, it's so last millenium, refactor GNU and "linux" and defrag the community. All get on the same page, and work together. stop stealing.

And start to abide by the existing laws and statutes, and consider that RMS and the GPL is NOT the total authority of what is Free or not, Free software is not GPL.

The GPL is far from free, and often considered to have far too many strings attached for commercial use.

If it was commercially viable to FOSS it would be used, and not what is essentually a statistical anomoly.

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