Post-Bilski Buzz- next round in patents v. open source software

Given the huge amount of commentary that the Bilski decision has provoked, I decided to flag a few key posts which offer interesting and varied perspectives and analysis on the decision and next steps.

Let’s start with David Ma’s us supreme court releases bilski decision on patents post on his techblawg post earlier this week.  David’s wonderfully concise and moderate analysis begins with his “bottom line” statement that “Business methods can still be patented in the U.S.” and continues with a short summary of the decision. I particularly like and agree with his observation that

it’s not the job of the courts to make up new stuff when it comes to the law – their job is only to interpret the law correctly. And if there’s any issue with the Patent Act, then it should be dealt with through legislative change rather than a judicial decision.

For a far from moderate, yet still valid perspective, let’s turn to the Reaction to Bilski v. Kappos post by Donald Zuhn on Patent Docs’ Biotech & Pharma Patent Law & News Blog. After describing the decision and quoting from a U.S. Patent and Trademark Office statement, Donald goes on to summarize (and link to) the press releases of each of the Biotechnology Industry Organization (BIO), the American Intellectual Property Law Association (AIPLA), and The Licensing Executives Society (LES). While it is no surprise that each of these organizations welcomed the decision, I really like this extract from the AIPLA release that was pulled together by Donald:

the AIPLA said it was “gratified that the Supreme Court in its Bilski decision . . . continues to interpret the Patent Act as open to the broadest range of subject matter, preserving the incentives for yet unknown areas of innovation.”  AIPLA Executive Director Q. Todd Dickinson stated that the organization was “generally pleased that the Court’s majority today confirmed that broad patent protection is critical to innovation and economic growth,” and that “[t]hey recognized that the patentability of next generation technology should not be judged by a last century view of the law.”  Mr. Dickinson noted that this was the position that the AIPLA had advocated for in its own amicus brief.  The AIPLA release also notes that “like many others filing amicus (i.e., “friend of the court”) briefs, [the AIPLA] believes that excluded subject matter must be kept to a minimum because this is the only way to keep the patent system open to crucial but unforeseen innovations of the future,” adding that “because the course of technology can take an unexpected path, the threshold test for patentable subject matter ought not become a barrier to the next life-altering innovation.” [emphasis added]

While the positions are somewhat “over-the-top”, Donald’s post is a good reminder that there is more to the patent system than software.  This is no small step to those communities that sometimes forget that there is more to software than open source software!

For a contrasting and insightful perspective on the Bilski decision, let’s turn to Bradley M. Kuhn’s Post-Bilski Steps for Anti-Software-Patent Advocates blog post. While Brad and I tend to disagree and to air our differences publicly, I do agree with his conclusion that “the entire “Bilski thing” appears to be a no-op” which aligns with my Much ado about nothing? – Bilski on open source software & patents post. I am also impressed by his position that he’s “pretty much only concerned about those forward-looking policy questions.” Finally, I think that he has done a pretty good job of listing a series of practical action items for “the fight against software patents” or the fight to “mitigate their impact”.

While I have some comfort with Brad’s piece, I remain a moderate on the role of the patent system in general. I even have an open mind on software patents (although I do have a high degree of discomfort with the overall intellectual property protection approach that has been adopted for software).

As I wrote some time ago in my The double-edged sword of enforcement post,”it is time for the OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner that respects the double-edged sword of enforcement.” These words are equally true today in the midst of the Post-Bilski Buzz. And while this is no party time for the open source software community, these re-worked words from my Methinks you celebrate too much post remain valid:  “And while a boxer should [be concerned about] a [bad] first round, he or she must not forget that a match has many rounds.” I am proud to see that Brad and others have stepped back into the ring.