Robert Pogson

Bilski mis-fired, but now EFF, CCIA and RedHat are asking SCOTUS to pronounce precise limits to patentability of software. Without such limits the courts are being swamped by lawsuits and innovation is being stifled rather than promoted by patents. An appeal to a lower court was declined, so this is an attempt to have the SCOTUS correct the lower court. A decision could have a huge effect.

The lower court does not seem even to understand the meaning of “abstract”:
“The Federal Circuit admitted that “the mere idea that advertising can be used as a form of currency is abstract,” yet found that when that idea would “likely” require “intricate and complex computer programming,” it was no longer abstract. “
Lawyers, “more abstract” is not the same as “concrete”… Sigh…

see H-online – “US Supreme Court asked to review software patents ruling“

UPDATE
Ars has another opinion piece showing that software patents “don’t scale”. That’s true of course. They reproduce pain and suffering geometrically while the world produces lawyers and courts linearly.

see Opinion: The problem with software patents? They don’t scale

I said the same thing for other reasons before: “Patents may have had some use for inventors of devices like machines with a few moving parts but the concept of a patent on hundreds of thousands or millions of lines of code in the software of a smart phone is absurd. It does not scale. It does not scale for the complexity of the device nor for the billions of copies one presumably can sell. After the first million or so, the return on investment is huge and the purpose of patents has been met. The rest is abuse.“

Tom Goldstein on SCOTUSBlog has written his best estimate of who will write the decision on Bilski:

• Justice Stevens will write it
• the scope of patents will be narrowed, probably restricting software patents
• the court will be unanimous but possibly split on the scope of the ruling…

He bases this on the history and involvement of Stevens on law of patents. He has a history of narrowing patent rights. The court has a history of spreading the written decisions around and Justice Stevens has yet to write one this term. I think this view is consistent with the engagement of Stevens in the oral hearing last year.

That supports my belief that software patents will get the boot but courts often surprise. They could find a way to dodge the issue by deciding only on this Bilski case very narrowly. I hope we will know two days from now. The suspense is killing me. Cleared of software-patents, M$ is powerless to stop GNU/Linux by any legal means. I expect the stock price will drop on the news. If somehow the software-patents are allowed to live but with narrower rules, it depends exactly on what those rules are. M$’s patent portfolio could be shrunk. We shall see.

I think the court will rule that software-patents are a Pandora’s Box that should never have been opened. The mind boggles at the $billions that have been wasted as a result. It will be interesting to see all the repercussions.
Will previous settlements and cross-licensing agreements be rolled back? That would be difficult even if required. Certainly the patent fud from M$ should be toned way down. They must have earned a lot of enmity in the last year or two extorting money from smaller businesses to “settle”. Who will give M$ any respect if software-patents go down in flames?