Bilski's growing up, and smacking down some bad software patents (opensource.com)

Posted Jul 18, 2011 18:40 UTC (Mon) by FlorianMueller (guest, #32048) [Link]

I wish that were truly a trend, but unfortunately it's not.

I have reviewed several post-Bilski rulings. Contrary to what Rob Tiller probably wants people to believe, none of them finds software unpatentable because it's software and therefore too abstract by definition. The fact is that only poorly-drafted patent applications face certains problems (as they already did in the past) because they're too abstract -- but they would also be considered too abstract if they were unrelated to software.

I don't know what Red Hat wants to achieve by telling such stories that a legally unsophisticated audience is likely to misunderstand. Just like they described their Firestar settlement in ways that many community members probably interpreted as them having defeated the troll -- when in reality they coughed up $4.2 million. Just for an example of how they tried to mislead people: their Q&A stated that the lawsuit was "dismissed". That sounds like a defeat for the plaintiff, but it wasn't: it was a voluntary dismissal as a result of Red Hat agreeing to pay up as they routinely do. In the Firestar case they were, at least according their own claims and Eben Moglen's blessings, in compliance with the GPL. In some of their other settlements they didn't even make that claim, let alone present Eben Moglen's or a similar authority's blessings ot the community.

The gist of the Bilski ruling in terms of software can be summed up in two sentences:

• The ruling and the minority positions didn't even touch on software in any remotely restrictive way but instead there was one passage that actually used new technologies as an argument against restricting the patentability of ubsiness methods.

• The ruling made it very clear that anyone seeking to restrict the scope of patentable subject matter has to talk to Congress, not to the judges.

That's the essence of what Bilski was about. In fact, Red Hat's former in-house counsel Mark Webbink just confirmed that outcome in his most recent Groklaw posting:

"While many of us had hoped the decision in Bilski [PDF] would be a first step, the U.S. Supreme Court clearly placed the determination of patentable subject matter in the lap of the U.S. Congress. Yes, Bilksi may have trimmed around the edges, but clever patent attorneys will still work around it. Moreover, given that the U.S. Congress has taken more than eight years to get a patent reform bill to a vote, it simply is not likely that Congress would vote to remove software from the realm of patents."

Again, Mark Webbink, ex-Red Hat, now Groklaw. and I agree with every bit of that quote.

So why does Rob Tiller raise false hopes in people?

The easiest explanation is that Red Hat is all about business (and not all about fighting software patents). Maybe Red Hat believes that all of the software patent litigation in connection with smartphones -- including the fact that Android has now, on a preliminary basis, been found to infringe a couple of Apple patents -- could discourage people from contributing to and/or deploying open source software. Red Hat obviously has a business interest in making people comfortable. But it's ridiculous to suggest that Bilski has seriously changed anything important about the patentability of software. Instead, the Bilski ruling reaffirmed the concept of an expansive patent system that grows as technology evolves into new fields.

The Bilski decision was a clear message, and Mark Webbink interpreted it correctly: only Congress can restrict the scope of patentable subject matter (or the enforceability of patents). Red Hat doesn't do anything serious to persuade politicians to abolish. So a secondary objective of Red Hat's post-Bilski spin doctoring may be to distract the open source community from Red Hat's failure to take serious action in that area.

Red Hat spends many millions on trolls. In the Firestar case, the precise number came out: $4.2 million. Some of the other settlements may have been even more expensive. But I doubt Red Hat has spent even 1% of its payments to trolls on efforts to bring about change. Why? Because Red Hat just wants to turn a short-term profit, and wants to curry favor with the community through window-dressing measures because that also serves a business purpose.

I know from Wall Street sources that Red Hat contributed at least $50 million to the Open Invention Network -- a self-proclaimed protective mechanism that still doesn't have even one verifiable success story. It has a couple hundred members but gave a non-member, Salesforce.com, patents to assert against Microsoft -- to no avail apparently. They never talked about it. That's why their name begins with "Open". That's why "open" source company Red Hat is one of its most active members.

I just wanted to draw attention to issues that really call into question Red Hat's credibility in connection with these issues.