# Bilski hearing: software patent abolition possible BOSTON, Massachusetts, USA -- Tuesday Nov 10, 2009 -- The End Software Patents (ESP) campaign has published a hopeful analysis of yesterday's Supreme Court hearing of the Bilski case. Although neither arguing party put software patents on the agenda, the judges posed questions that raised the issue and sometimes called into doubt the value of software patents.
<http://news.swpat.org/2009/11/bilski-hearing-software-patents> ESP executive director Ciarán O'Riordan notes, "There are no clear statements about software patents, but some comments give us hope, and they hint that maybe the judges found the amicus briefs interesting." Examples include: * Justice Breyer noting that he's not sure if "with respect to information ... patents protection will do no harm or more harm than good" * Chief Justice Roberts criticizing the USPTO's claim that use of an "interactive website" would make a business method patentable: "No, no. That's just saying instead of looking in the Yellow Pages, you look on the computer; and that makes all the difference to you?" * Justice Stevens points out that programming a computer is not the same as making a DVD player: "the only difference from the old computer is it's using a new program. You can't say that's a new machine." * Justice Kennedy highlighted the natural science aspect of the 1981 Diehr ruling: "that looked like a machine, the substance was different before the process and after the process" On the lack of direct comments about software patents, O'Riordan explains, "This is a case about a business method patent, so we were never guaranteed to have software considered at all. The judges did raise the issue, but Bilski's representative pre-empted the discussion by arguing that simply everything should be patentable -- even 'a new thing to say on the telephone'! The USPTO representative got himself in a knot explaining why he was dodging the issue. The judges did seem troubled by the question of: in a sequence of steps with no physical component other than a computer, where does the invention lie? and they noted pretty clearly that allowing a computer to confer patentability could create a back door that would undermine existing exclusions." There is no date for the final ruling, but some suggest it will be early next year. It may also lead to proposals to change legislation, so raising awareness and improving our explanations is very important. ESP is asking for your help in documenting the problems with software patents and in raising awareness in the mainstream media, software press, and in legal communities. ESP hosts a wiki and a news site to support these tasks: * <http://en.swpat.org/wiki> * <http://news.swpat.org> A transcript of the hearing can be read on news.swpat.org: * <http://news.swpat.org/2009/11/bilski-hearing-transcript> And background information about the Bilski case can be found at: * <http://endsoftpatents.org/about-bilski> ### About the End Software Patents campaign End Software Patents is a project formed to eliminate patents for software and other designs with no physically innovative step. It promotes a US technology-development environment which will drive innovation and growth in the global marketplace. End Software Patents receives sponsorship from the Free Software Foundation. For more information on participating in the project, or to access its knowledge base, please visit its website at <http://endsoftpatents.org>. ### About the Free Software Foundation The Free Software Foundation, founded in 1985, is dedicated to promoting computer users' right to use, study, copy, modify, and redistribute computer programs. The FSF promotes the development and use of free (as in freedom) software -- particularly the GNU operating system and its GNU/Linux variants -- and free documentation for free software. The FSF also helps to spread awareness of the ethical and political issues of freedom in the use of software, and its Web sites, located at fsf.org and gnu.org, are an important source of information about GNU/Linux. Donations to support the FSF's work can be made at <http://donate.fsf.org>. Its headquarters are in Boston, MA, USA. info-fsf mailing list [email protected] Unsubscribe: http://lists.gnu.org/mailman/listinfo/info-fsf
