The Obama administration has started an official petition website called "We the People," in which Americans can propose and vote on petitions for consideration by the White House. Petitions that cross a popularity threshold (originally 5,000 signatures within 30 days) get an official response from the White House.

This being the Internet, one of the first petitions focused on software patents, asking President Obama to "direct the patent office to cease issuing software patents and to void all previously issued software patents." The White House issued its official response on Tuesday. After touting the recently passed America Invents Act, Obama technology advisor Quentin Palfrey says the executive branch's hands are tied:

There's a lot we can do through the new law to improve patent quality and to ensure that only true inventions are given patent protection. But it's important to note that the executive branch doesn't set the boundaries of what is patentable all by itself. Congress has set forth broad categories of inventions that are eligible for patent protection. The courts, including the US Supreme Court, have interpreted the statute to include some software-related inventions. Even before the legislation passed, the Administration took other important steps to ensure that only high-quality patents are issued, and that we curb or invalidate overly-broad software patents. For example, the USPTO recently issued guidance to its examiners that tighten up the requirements that inventors fully describe, specify, and distinctly claim their inventions so that vague patents are not issued. We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.

There's a lot of truth to this. The rules Congress established for patent eligibility are extremely broad, so in practice decisions about what can be patented—and in particular, whether it includes software—are primarily made by the courts. The courts have been rather confused on the subject. The Supreme Court has traditionally been skeptical of software patents, but it hasn't ruled on the subject since 1981. Since then, the law has been shaped by the software-patent-friendly United States Court of Appeal for the Federal Circuit.

The USPTO is obligated to respect decisions of the Federal Circuit, so USPTO director probably couldn't invalidate all software patents—or even all new software patents—with the stroke of a pen. But the Patent Office still has a lot of influence. For one thing, it takes the decisions of the Federal Circuit and translates them into specific guidelines for patent examiners to follow, so where the Federal Circuit is ambiguous, the USPTO can err on the side of rejecting software patents—indeed it has been doing just that to a limited extent. Over time, such rejections, if upheld by the courts, could shift the law in a less software-patent-friendly direction.

The Obama administration can also influence the law in another way. When the Supreme Court is considering a patent case, it invariably invites the administration to submit a brief, and will often give the solicitor general the opportunity to participate in oral arguments. If the White House became convinced that software patents were detrimental to the American economy, it could begin filing briefs encouraging the Supreme Court to reinstate its original ban on software patents. While the Supreme Court isn't obligated to take the government's advice, it would carry a significant amount of weight.

We're not going to hold our breath, though. Before joining the USPTO, Director David Kappos was Assistant General Counsel for Intellectual Property at IBM. While we assume he's not beholden to his former employer, we're willing to bet that Big Blue's enthusiasm for software patents has rubbed off on him.

The White House statement also included a strong endorsement of open source software:

We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions.

The statement touts a number of administration initiatives related to open source software, but doesn't mention any policies to protect open source software from patent litigation.