Bilski: the next steps

There are two phases left. There’s a phase of maybe four or five months until the ruling, and there’s a longer post-ruling phase where we may get legislative proposals or a second Supreme Court case. This is the first time in 28 years where the USA could rid itself of software development’s biggest problem, so let’s look at what we have to do over the coming months.

Recent past

All the amicus briefs are in. That was important. We had our say, and so did many others.

The hearing’s been had. (transcript, highlights) That wasn’t so important. Neither party in the case is on our side, so we’re relying on clear thinking by the judges and that they like the arguments of the amicus briefs that argued against software patents.

What’s happening now

The ruling is discussed internally, but the judges don’t live in a vacuum. They read newspapers, legal periodicals, and maybe one or two patent blogs. These media are going to discuss the topic of software patents, so we should make sure that our side is properly represented.

We have our own sites (to which news.swpat.org is the newest addition), and these are great for sharing knowledge to get our understanding and our message right, but these are read by very few people in the legal community, so remember that they’re a tool, not the goal.

To do

In the longer term, there is a good chance of legislative proposals after the Bilski ruling. At that point we’ll need broad public support. Right now, we have a rare tool for getting media attention: “Would you be interested in publishing an article about this current Surpreme Court case?” Software patents is currently not just an obscure issue for a software developers. So right now we should be:

  • Writing articles (here’s one example)
  • Making funny videos or other mass-audience materials
  • Documenting the situation and making the legal aspects clear and understandable (that’s what en.swpat.org is for)
  • Get ourselves clear about what our issue is (also a job for en.swpat.org)
    • It’s not about quality: Software developers need to be able to use standards and be compatible. Whether the patents that block this are smart or dumb isn’t important.
    • It’s not about wrongly granted patents: There are twenty companies that claim to have one or more patents on the widely used mpeg video format. It only takes one patent to block a software developer, so removing the wrongly granted patents from that thicket wouldn’t help.
    • The problem is that patents are incompatible with activities where products are often developed by individuals, sometimes by people who don’t profit directly, and where the users are strongly affected by the licensing terms (so wide variety is necessary to ensure someone’s offering what they want – or what they find acceptable)