The below letter is ESP’s submission to the USPTO 2010 post-Bilski consultation. The best part of the Bilski decision was that it left the door open for excluding software from the patent system in a future ruling. Instructions about what has to change today are a little more subtle, but we’ve formalised three here which we hope the USPTO will take into account.
To prepare a submission for the USPTO’s Bilski consultation (deadline: 27 sept), I’ve been reviewing the various analyses of the Bilski decision. I think the best was Dan Ravicher’s (of SFLC and PubPat). It was an audio presentation, so below is a transcript I made. You can find the audio on softwarefreedom.org.
Some people have asked where they can read the patent which was the object of Bilski v. Kappos. The answer is that it’s a patent application and as such it’s confidential. However, the key excerpts did get published via the opinions of the various courts which rejected it. Keep in mind that the application may have been modified since its filing in 2006, and the authors have expressed their intention to modify it and try again to get it granted. With that said, below is the text we know of.
[UPDATE: We have almost the full text, thanks to contributor Gibus]
ESP is collecting third-party analyses and we’re working on our own analysis here: http://en.swpat.org/wiki/Bilski:_analysis_of_Supreme_Court_decision.
Scotusblog.com has some details. Justice Kennedy wrote the court’s opinion. For anyone who can’t connect, here are their live-blog posts:
Everyone expects the US Supreme Court to publish their decision on the "Bilski" case today (June 28th 2010). The court has to decide on the validity of a patent on a business method, but that’s not the main issue. Everyone expects that patent to be rejected, but the main issue is that to reject a patent the court must give a general test and explain why this patent fails that test. We want to know if they’ll propose a test which will also be failed by some or all software patents.
No Bilski today. The only date left on the calendar for announcing decisions is Monday June 28th. The court confirmed today that Monday will be the last day for announcing decisions, so either we get Bilski then, or there’s a very remote possibility that they will hold Bilski until the new term after the Summer. Background on this case can be found at en.swpat.org/wiki/Bilski v. Kappos.
Once again, after a tense morning, the opinions for the day are all announced and there’s still no Bilski. The remaining opinion dates are Thursday June 24th (announced last Friday) and Monday the 28th. For anyone new to the case, the background is described at en.swpat.org/wiki/Bilski_v._Kappos_(2010,_USA).
June 14th‘s opinions have been published, and Bilski’s not there. The SCOTUSblog folk at the court also confirm there’s no Bilski decision. The court has announced that they will additionally publish opinions this Thursday. The possibility of delaying the decision until the next term is very unlikely as Chief Justice Roberts said at a conference last week that Bilski will “almost certainly be issued on one of the next three Mondays – June 14, 21, or 28.” Since June 14th is now passed, and the 17th has been added, that makes three possible days for announcing Bilski: June 17th, 21st and 28th.
The Supreme Court handed down a lot of decisions today, but not Bilski. The remaining possible days are all in June: 1st, 7th, 14th, 21st, 28th. The Supreme Court term runs from October to June. Bilski’s hearing was November 9th, which is pretty early, and now the decision is coming in the last month. They must be working hard on this one.
FSF has just published a film by independent film make Luca Lucarini:
Against the backdrop of of the current Bilski case in the US Supreme Court, the film features a series of interviews explaining the absurdity of software patents and how we got into this mess. Luca and some of the cast from the film kindly agreed to answer here some of the questions you might have about the film. So fire away!
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.
Another US district court has made a ruling based on Bilski – rejecting three patents, although giving ambiguous comments about one of them. Together with two previous rulings based on Bilski, we can look at how it might be used, and what are its shortcomings.
At Monday’s hearing (court transcript), neither party had the objective of abolishing software patents. The Bilski case is about a business method patent, so there was Mr. Jakes arguing that business methods should be patentable, and Mr. Stewart arguing that they shouldn’t. For software to be excluded, we’re relying on the judges (to whom we wrote an amicus brief, as did many others). There’re a few worrying statements, but there’s also a lot of hope.
Reports are starting to appear from today’s hearing of the Bilski case at the US Supreme Court. I’ll keep updating as they appear.
- In Re Bilski – Transcript of Today’s Oral Argument at the US Supreme Court – Groklaw
- Supreme Court Hears Bilski v. Kappos – Patently-O
- Bilski patent decision: trying to return patents to their technological origins – praxagora.com
- Bilski Arguments Complete at the US Supreme Court – IP Watchdog
- Analysis: The “Lorenzo Jones” case emerges – Scotus blog
- “On the Scene” Reports and Blogs from SCOTUS Bilski Arguments – The 271 Patent Blog
- Justices Skeptical in Patent Case on Business Methods – Wall Street Journal
- Justices Question Patent for Abstract Business Innovations – New York Times