Saturday, July 10, 2010

The silver lining in the Bilski decision isn't where most people believe

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn't draw any kind of line that would affect patents on software technology.

I commented on it within about an hour of its publication, concluding that the decision didn't invalidate even one software patent (the Bilski application itself wasn't a software patent application) and that only a decision to grant a patent on the Bilski application could have been any less restrictive. On the following day I listed the top ten losers.

Meanwhile discussion has continued and I've read a number of other opinions. Some of those were very realistic, such as Steven Vaughan-Nichols's analysis. Others took a more optimistic perspective and argued that the narrow scope of the ruling left the door open to more restrictive decisions in the future.

As the saying goes, every cloud has a silver lining. So where is it in the Supreme Court's Bilski opinion? There is one, but it's not where others seem to think it is. I'll start with where I believe many others are on the wrong track.

The "abstract idea" approach is a losing strategy

The conclusion from the Bilski ruling that patents on software technologies might one day be invalidated on the basis of being abstract ideas -- which is how the non-software Bilski application got rejected by the SCOTUS -- is
  • a gross misinterpretation of the ruling, blatantly ignoring the court's unambiguous endorsement of patents on software technologies,

  • an ideological argument that bears no legal or political weight with a majority of reasonable decision-makers,

  • and, therefore, destined to remain unproductive at best and counterproductive at worst.
I know that some people who subscribe to that ideology won't like to read what I just wrote. But I'm not writing this for the ones who'd rather lose for the sake of an ideology. I'm writing this for those who understand that one can very well adhere to an ideology and simultaneously recognize that it takes something other than ideology to win.

Ideological blindness is the number one reason to which I attribute the fact that software patent abolitionism hasn't made any real headway (other than some defensive success).

There are many different angles from which one can come to the conclusion that software should be a largely or entirely patent-free field. Often when I talk to people who have that belief, it turns out that each person believes his reasoning for why software patents are undesirable is the truth and the winning argument. There are activists who think like it; there are also executives of smaller companies whose narrow perspective prevents them from recognizing that politics bears some -- but only limited -- resemblance with marketing.

Let's better face this fact: there isn't a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you'll have to do it indirectly. The direct approach has been tried by many people for many years -- to no avail (except, as I mentioned before, in a defensive situation).

The Bilski case was likened to two past cases and deemed different from a third past case

A lot of FOSS advocates basically argue that since the SCOTUS didn't explicitly say that software must be patentable, there's always a chance to go back with another case. That's just wrong. It's a typical exhortation to hold out (or, more precisely, to cling to a flawed strategy).

Don't let others fool you just because they don't want to adjust to reality. Here's a non-legalese explanation of what the SCOTUS really said.

The SCOTUS clearly stated that it did not want to issue a wide-ranging ruling with unintended consequences on other areas of patentable subject matter than the Bilski type of non-software business methods. And the SCOTUS determined that it wasn't really forced to overshoot: there already were precedents for similar concepts that were found unpatentable on the grounds of representing "abstract ideas."

The dreamers who think that software patents could be abolished on that same basis base their hopes on the fact that the SCOTUS didn't specify a set of rules that would define what an unpatentable "abstract idea" is. Experts would say: the court didn't establish a legal test (or a set of legal tests) that can be used to make that determination.

But the SCOTUS gave a couple of examples, and in the usual case-law style, those are cases put before it in the past. The court found that -- without even attempting to put it onto an objective basis -- the Bilski application was of a very similar nature as the ideas held unpatentable in two past cases (Benson and Flook). The court furthermore determined that the Bilski application didn't have enough in common with the patent considered valid in the Diehr case.

Without digressing into the details of those cases, let me just say that Benson and Flook related to general ideas without a very specific application and implementation. In my opinion, the Diehr patent shouldn't have been granted either, but there's no denying the fact that it was much more specifically tied to a technical purpose than Benson and Flook -- and than Bilski, of course.

There was a lot of disappointment among patent abolitionists that the SCOTUS didn't seize the opportunitay presented by the Bilski case to do some more specific line-drawing. While no one wanted to insult the court directly, the criticism suggested a lack of courage. I don't think that's fair. I believe the SCOTUS was right to find that the Bilski case per se presented nothing that hadn't been answered by it before. It was more of the same, and that's why it was the waste of time and money that the Software Freedom Law Center said it became. The case just wasn't suitable to what some people -- such as the SFLC -- would have liked to achieve. So don't blame the court.

The SCOTUS didn't draw a clear line but gave plenty of hints

Obviously a ruling based exclusively on similarities to past cases (without elaborating on inhowfar there were common elements) is less clear than a set of rules. The court almost implied that "if something is an abstract idea, we'll see it anyway." In the meantime, people should just look at the examples and draw inferences from those.

But the SCOTUS made some clear statements in its reasoning as far as software patents are concerned. Note that in the following I'm referring to some passages of the reasoning that were written by Justice Kennedy, who also presented the majority opinion, but those particular passages were not supported by Justice Scalia.

On page 9 of the decision, a more restrictive approach was rejected because it "would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." While that is based on a reference to position papers (amicus briefs) submitted by pro-software-patent organizations, the way the SCOTUS refers to those concerns leaves no doubt that the justices who supported the passage agreed that the Bilski decision shouldn't cause collateral damage in those areas.

Now look at that list again: if even "data compression" should be patentable in principle, there's just no way that software would be considered too abstract an idea. Data compression is the kind of software patent that is closest to pure mathematics. One may argue -- and I personally believe -- that it is essentially pure mathematics and the argument of proponents of patentability that it's "applied mathematics" doesn't convince me at all. I can see "applied mathematics" in play if a car brake is computer-controlled to maximize its efficiency. I can't dismiss the idea that computer graphics can involve "applied mathematics" (I may not want patents on graphics algorithms for other reasons). But with "data compression" I just consider it incredible that some people would (and actually do) claim that those are "applied" as opposed to pure mathematics.

So if there's such a widespread belief that data compression should remain patentable in the Information Age (and that's what it does unless one wants to just interpret the ruling in completely unreasonable ways), then this suggests to me that the entirety of patents on software technologies is safely outside of whatever the SCOTUS would consider an "abstract idea."

The SCOTUS makes it very clear that as new technologies evolve, the patent system was intended (by the Founding Fathers) to expand accordingly, unless there's legislative intervention to restrict it. In this regard, a majority of the court also referred to "technologies for conducting a business more efficiently" (which I mentioned in connection with what Bilski means for

That's just one of several examples -- but in my opinion the best one -- of where the SCOTUS makes it clear that at least some business methods must be patentable.

So if even software-implemented business methods are patentable, there's just no way that future SCOTUS rulings would hold typical software patents to be "abstract ideas" and therefore unpatentable.

Ideologues will say that software is a product of authorship rather than of engineering. I understand some of the reasoning and I support it, but many critics of software patents are just unrealistic in terms of how they make that point. Claiming that software development is closer to composing music than to electrical engineering is crazy. I've been in the software industry for 25 years now and I've always referred to software as "technology" and to professional programmers as "software engineers", even though I can also see what programming has in common with writing. Having authored twelve computer books, I believe I can -- and I do -- appreciate that.

So programming has common elements with both engineering and authoring: that doesn't mean I can deny the engineering part of it just because I don't want to deal with patents in my field. I can have other reasons, but that one isn't a useful argument.

The idea that every software patent is just an abstract idea is an abstract idea in and of itself. And it won't get us nowhere.

The actual silver lining: the SCOTUS' remark on striking the balance

Radicals are always more receptive to fundamentalism than to an argument based on striking a reasonable balance. But the latter is what works best to convince rational decision-makers.

Near the top of page 10, the Bilski decision contains a wonderful passage that is infinitely more helpful with a view to the future than the whole "abstract idea" thing:
This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge instriking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.
This passage is another reason for which I think a lot of critics of the decision are biased. What I just quoted shows that the justices supporting that passage understood very well that there may be a problem with software patents. However, a majority of the SCOTUS didn't consider the Bilski case the right occasion on which to address it, and it may not even regard any future case as an opportunity to determine "where that balance ought to be struck."

The quoted passage basically says: In the past there was a much smaller number of people who came up with potentially patentable ideas as part of their work. There were a few scientists in laboratories (not literally, but that's roughly the idea). These days there are tens or hundreds of millions of people who have a computer at home or at work and know how to program it, and maybe the traditional approach taken under patent law doesn't work well in such a situation and results in too many patents and -- a highly important aspect -- too many incidents of inadvertent infringement through independent creation.

While that doesn't sum up all of the reasons for which I dislike software patents, it addresses the core part of it. I mentioned in other contexts that my fundamental problem with software patents is the risk of inadvertent infringement. With copyright, that risk exists in a theoretical form but not in a practical one. With patents, it's a serious issue, especially in the field of software.

I believe that the oppponents of software patents should focus on that part of the Bilski opinion and try to build a case on that basis. Maybe there shouldn't be just another legal case because the SCOTUS also stated on several occasions that the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed." But at the very least the quoted passage from the decision gives some guidance in terms of how the case should be presented to lawmakers.

I know that many in this movement won't want to go down that avenue for the fear that the outcome would be some patent quality initiative as opposed to abolition. And if such a patent quality initiative didn't live up to expectations, it wouldn't change anything. I understand. I share the concern. But I don't see any other silver lining in the Bilski decision (as far as the majority position is concerned). The argument that the number of innovators is huge and that too many patents result in too much inadvertent infringement is one that non-programmers can understand. Unlike the "abstract idea" that won't ever have any material impact.

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