The FSF should not substitute pressure group tactics for reason

Posted Sep 26, 2010 16:51 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

You're too negative. Bilski specifically did not endorse State Street, which was one of the worst decisions to open the floodgates. A lot depends on what lower courts do now.

I'm not being too negative. Knowledgeable people who don't have any spin-doctoring intentions would all agree with me. There are a few websites out there trying to confuse people like you, such as GroklXX or the FFII.

State Street opened the floodgates for business method patents. It wasn't needed in any way to open the floodgates for technical software patents.

It's absolutely clear that the SCOTUS was perfectly aware of the software patent situation and simply didn't consider anything to restrict the patentability of software as far as technical innovation (not just business methods) is concerned.

The key thing is that the SCOTUS positioned itself firmly in the pro-software-patent camp. It threw out the Bilski application but it also overthrew the CAFC's (previous instance) approach, which was that an application failing the machine-or-transformation (MoT) test must be rejected. Even software patents, such as the ones granted by the European Patent Office all the time, can pass MoT. But to do away with software patents, you need to reject all patent applications failing to pass MoT and then still have ways to reject many of those who pass MoT. Diametrically opposed to that, the SCOTUS said in its Bilski decision that even an application failing to pass MoT must still get more bites at the apple (more opportunites to get a patent granted).

So the anti-software-patent camp at least wanted the CAFC decision to be upheld (like I said, that would not be sufficient, but it would have been a first step), or ideally an even stricter standard to be introduced on this occasion, but the SCOTUS -- well aware of those demands but apparently not impressed by them at all -- walked in the very opposite direction and instead said that even failure to pass MoT doesn't mean a patent application must be rejected.

Another way to look at is that business method patents are an even more extreme kind of patent than technical software patents in terms of not representing an advance in an applied natural science. That's why even most of those favoring technical software patents are opposed to business method patents (examples: IBM, Google, Microsoft).

So to do away with even a part of technical software patents, one would at least have to do away with all business method patents and would then still have a long way to go and face an uphill battle -- but it would at least be a starting point. Contrary to starting abolition, the SCOTUS even failed to agree on the exclusion of business method patents. It said clearly that only Congress has the authority to promulgate such limitations.