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In re Bilski - Let us get back to work

by Richard Hillesley

The case known as "In re bilski" has the potential to go some way towards righting some of the wrongs of the patent industry, while coincidently, transforming the prospects for innovation in the information and software industries.

During the last few years, the United States has witnessed a proliferation of patents in industries that are central to the information economy, despite a wide belief that the rush to patents and business models based on 'Intellectual Property Rights' has the effect of restricting the flow of information and inhibiting innovation.

In 1999, the United Nation Development Program's 'Human Development Report' came to the conclusion that "the relentless march of intellectual property rights needs to be stopped and questioned" because of the regressive effects of patent law on health, trade and economies in the developing world.

A generic mousetrap

Software evolved in a climate free of patents, but a relaxing of the rules by the United States Patent and Trademark Office (USPTO) has lowered the bar for patent claims. During the last two decades, thousands of software patents have been issued on business methods, data structures and process descriptions that take no account of how software is developed - and this effect has been enforced around the world through the auspices of the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO).

Because software deals in language and the expression of mathematical constructs and ideas, advocates of free software have argued that code should be treated in the same way as the written word, which is subject to copyright. Patents on software are, in effect, a tax on ideas. We are obliged to search and exclude the idea that someone else may have claimed ownership to, or pay the price for having the same idea. Eben Moglen of the Software Freedom Law Center (SFLC) takes the view that: "Software patenting has been a scourge in the global technology industries," and that "computer programs should be as ineligible for patent protection as mathematical equations or precise descriptions of physical laws."

This position is elucidated in the opening paragraphs of the UK Open Rights Group's page on software patents where it says that: "Advances in software are advances in abstraction. While traditional patents were for concrete and physical inventions, software patents cover ideas. Instead of patenting a specific mousetrap, you patent any 'means of trapping mammals' or 'means of trapping data in an emulated environment'. The fact that the universal logic device called a 'computer' is used for this does not constitute a limitation. When software is patentable, anything is patentable."

I own the world

The problem for computer professionals is that almost everything has become patentable. A succinct expression of this truth was provided by Bill Gates in the much quoted Microsoft internal 'Challenges and Strategy' memo, dated May 16,1991. "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents", he wrote, "the industry would be at a complete stand-still today."

Rather more revealingly, Gates concluded that the "solution" to the problem of patents was "patenting as much as we can... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." Microsoft has since put this lesson into effect.

A timely reminder of what is at stake in the Bilski case is provided by the lawsuit for patent infringement that has been filed by Eolas Technologies Inc. against 23 technology companies for embedding plug-ins into browsers. Eolas did not invent the browser or the embedded technologies which have come since, but owns a patent on a broad and obvious programming concept which has been applied to technologies that were unimagined at the time. This patent has the capacity to inhibit the progress of the Web for years to come, as Tim Berners-Lee explained in his submission to an earlier court - and if the patent is upheld Eolas can expect a return in the billions of dollars.

This effect, of inhibiting innovation and the interchange of ideas, is not offset by the theoretical ability of individuals and SMEs to take out patents of their own. The patent industry is dominated by the giants and the lawyers they employ, as Robert Barr, vice president and worldwide patent counsel for Cisco Systems, explained in 2002 :

"Obtaining patents has become for many people and companies an end in itself, not to protect an investment in research and development, not to license technology to others who need it, but to generate revenue through licensing ('holding up') other companies that actually make and sell products without even being aware of their patents... This provides opportunities for contingency fee litigators, for licensing companies and consulting firms who claim to help people 'mine' their patent portfolios for patents that even they didn't know they had."

"It's hard to see how this contributes to the progress of science and the useful arts," Barr concluded.

Next: Abstractions and Transformations

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