Tuesday, June 29, 2010

Casual Observations on Bliski

On June 28, 2010 the US Supreme Court finally issued its long awaited Bilski (BILSKI ET AL. v. KAPPOS,) decision. Like many I was hoping that the Court would put an end to patents on business methods and software. Alas, they did not. The Court simply restricted its decision to rejecting Bilki's patent application "for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes" as being too abstract. On the greater question of whether business methods or software can be patented, the Court essentially deferred that decision to a later day.

Like many I was very interest in reading what others had to say. I was quickly amazed at the diversity of headlines. So the headlines, in a limited way, became a mini-story.

Washington Post: "Supreme Court relaxes limits on innovations that can be patented"
New York Times: "Justices Take Broad View of Business Method Patents"

The two headlines above, as the stories themselves proved to be, are deceptive. The Washington Post for example inaccurately wrote "The Supreme Court on Monday loosened the limits on the kinds of inventions that are eligible for patent protection in a case that was closely watched for its impacts on innovation. "

Surprisingly, the New York Times Bits section had this headline: Bilski Ruling: The Patent Wars Untouched. Congratulations to Bits' Steve Lohr who wrote: "The court issued its much-anticipated ruling in the big patent case — Bilski and Warsaw v. Kappos — and it was anything but a landmark decision."

Los Angeles Times even got it right: "Supreme Court rules that patent of hedging weather-related risk cannot be granted". Jesse Holland wrote: "The Supreme Court on Monday refused to weigh in on whether software, online-shopping techniques and medical diagnostic tests can be patented, saying only that inventors' request for protection of a method of hedging weather-related risk in energy prices cannot be granted."

Its always interesting to see how various newspapers report the same story. Especially in the case where each reporter has the case before them. Biases clearly weigh in.

While the Bilski decision essentially proved to be a non-decision for eliminating the ability to patent business methods or software, the attempt by Bilski to obtain a patent points to some very troubling and growing trends in patent law. Like copyright law, the courts have been pressured into granting ever greater monopoly power to the patent holders. Up until the 1998 Federal Circuit State Street decision, patent applications for business methods and software were routinely rejected. Unfortunately, exposing the "land grab" of those seeking ever stronger patent rights seems to get overlooked in the popular press.

Perhaps the most onerous aspect of the patent "land grab" is that those who seek business method patents are not seeking a patent on a particular "object", but on the entire concept of that object.

Let's use the starter motor of a car as an example. There are many types of starter motors. It would also be safe to say that each manufacturer of a starter motor probably has patents on those motors. Nevertheless, they are each able to manufacture a starter motor. However, if we apply the concept of business method, the patent ends up no longer being restricted to the object that you are producing but to the entire concept of "starter motor". What that means is that only the patent holder would have a right to manufacture starter motors. Everyone else would have to get permission from the patent holder. How about that for monopoly power!

As an example of this aggrandizing process Acacia Technologies received a patent for sending and receiving of streaming audio and video over the Internet. The Electronic Frontier Foundation busted the Acacia Technologies patent. The EFF noted a: "Laughably broad patent would cover everything from online distribution of home movies to scanned documents and MP3s"

While Bilki decision did not address the big picture concerning inappropriately granting patents, it did at least, in this one case, slow the march towards ever greater absurd patents.

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