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Mark Nelson

Dr. Dobb's Bloggers

Software Patents Not Dead Yet

June 28, 2010

When the US Supreme Court agreed to hear the Bilski case, software patent haters collectively crossed their fingers and began a patient death vigil.

Alas, it appears that software patents are here to stay. For once, the Roberts court decided to stick to its avowed role as a simple umpire, and declined to take an activist stance in this murky area.


The Bilski case centers around a US Patent application filed in 1997 which seeks protection for an algorithm used to hedge risk in commodities trading. Back in the boom days of the late 90's, business method patents were all the rage, and Bernard Bilski was hoping to catch the wave and get one of his own.

A series of losses in US Federal courts ended up with this case being accepted by the Supreme Court of the United States. The fact that the highest court in the land showed interest in the case meant that there was a possibility for new law to be developed. Because we know that pure algorithms are not patentable in the US, many hoped for a decision that completely banned both business method patents and software patents.

No such luck. In a rather tepid decision, the court agreed that Bilski's invention was not patentable, but limited its reasoning to current law and precedent.

So for the time being, business method patents will continue to be granted in small quantities, software patents will continue to be granted in huge quantities, and attempts to patent pure algorithms will presumably be denied.

Interesting discussions and analysis can be found at Patently-O, Slashot, and Florian Meuller's FOSS Patents.

The Upshot

Given the fact that the decision in this case was free of controversy, and didn't overturn existing law or precedent, we can draw a couple of conclusions.

First, the lower courts now have their marching orders. They have been instructed to stick with the status quo, and not get any crazy ideas about striking down patents not mechanical in nature.

Second, absent legislative directives, we can expect the status quo to remain in place for a long time. The SCOTUS is unlikely to revisit the case any time soon - in fact, given the nature of the decision, it is somewhat confusing why they even decided to hear Bilski.

My conclusion for people who don't like software patents? Suck it up and accept that they are a part of the landscape. Instead of trying to tilt at these obnoxious windmills in the courts or the Congress, the best approach is probably via avenues such as GPLv3 that tackle software patents on their own legal turf.

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