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[Updated] Supremes Defang Bilski; Software Patents Safe

As the patent law blog Patently-O says, nothing’s changed. It’s “business as usual”

The Supreme Court of the United States finally handed down its long-awaited decision in the Bilski case Monday.

That's the one the FOSS movement hoped would throw a monkey wrench into software patents. Well, the FOSS folks are going to be sorely disappointed.

The Supremes in their infinite wisdom shot the pins out from under Bilski and said his method for hedging risk in commodities trading couldn't be patented but did so in such a way that Bilski is basically treated in glorious isolation, setting no precedent for software patents, even business method software patents.

As the patent law blog Patently-O says, nothing's changed. It's "business as usual."

In fact, the Supremes may have actually opened the door to patents a bit wider since they didn't rely on the narrow "machine-or-transformation" test doted on by the Federal Circuit in ruling against Bilski. Instead they said the Bilski method couldn't be patented because it's an abstract idea reduced to a mathematical formula and, as every school kid in America knows, ideas can't be patented.

The court refused to limit a process further than that.

Patently-O remarks that it's unclear now "how patent office examiners will be able to apply the test for abstract ideas in any meaningful way. I suspect that they will not."

Stephen Schreiner, a relieved and exuberant patent attorney with Goodwin Procter and an expert in business method and software patents, said, "Wow, the Supreme Court ended its 2010 session with a bang. The court launched the United States patent system into the Information Age with the Bilski v Kappos decision today. Rejecting the chorus from some demanding the patent system be limited to Industrial Age technology, the court answered with a flat ‘no,' finding patents are available for software, business methods, medical diagnostic techniques, and other products of the Information Age. In sum, everything is ‘back up in the air' again."

Rob Tosti and Tom Meyers of Brown Rudnick would cautiously agree. It's not the free-for-all introduced by the business methods-condoning State Street decision. There's some common sense guidance here but it's pretty loose and flexible.

Bemoaning the decision on behalf of FOSS people everywhere, Florian Mueller, the founder and former director of the European NoSoftwarePatents campaign, said that "The court's majority position is about the most liberal reasoning that it could have been. Only a decision to uphold the Bilski patent could have been any less restrictive....The Supreme Court's decision does not do away with even one software patent that already exists, nor does it raise the bar for the future."

Justice Kennedy wrote the majority opinion, saying that "the court once again declines to impose limitations on the Patent Act that are inconsistent with the Act's text." Justice Breyer and Justice Stevens wrote concurring opinions.

The decision should suit great patent owners like IBM to a "T." IBM went so far as to argue in passing in the amicus brief it filed with the court that "Patent protection has promoted the free sharing of source code on a patentee's terms - which has fueled the explosive growth of open source software development," a construction Mueller takes exception to.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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