Software Patents: Will Bilski Finally Answer the Question?

On the off chance you haven't been following what's known as the "Bilski case" -- well, you should be following it. Of course, at this stage, it's more "catch up" than "follow" since the case is now in the hands of the U.S. Supreme Court and nothing will likely happen until the middle of next year when the Court lays down the law, so to speak.

Here's the background: Bernard Bilski and Rand Warsaw applied for a U.S. patent for "a method of hedging risk in the field of commodities trading." The application was rejected by both the U.S. Patent and Trademark Office (USPTO) and the patent appeals court, which found that the application was not subject matter that qualifies for patent protection. Bilski then appealed the rejection to the Federal Circuit, and again was rejected. Finally, at the start of this year, Bilski and Warsaw petitioned the U.S. Supreme Court to overturn the Federal Circuit's decision, and oral arguments were presented to the Justices last week. And so we now wait to hear their decision.

So why should software developers care about a twice-denied patent application for something that has to do with commodities trading? The fundamental issue, says Robert Tosti, an attorney specializing in patents, trademarks, and other such intellectual property, is whether patents should be allowed on methods that don't involve a machine. Stuff like, well, source code. In other words, the question of whether software can be protected by patents -- an issue that's been bubbling for 20 years or more -- may finally be laid to rest.

Both the Free Software Foundation and Red Hat submitted amicus curiae briefs asking that the Supreme Court to affirm that software is not patentable, with Red Hat pointing out that "our patent system is supposed to foster innovation, but for open source and software in general, it does the opposite. Software patents form a minefield that slows and discourages software innovation." Hear, hear!!

In the meantime, we sit and wait a little while longer. The one thing we can count on when the Justices render their opinion is that some of us will like what they say, and some of us won't.

-- Jonathan Erickson
jerickson@ddj.com

Posted by Jon Erickson at 04:28 PM  Permalink