The Law Developer

     A while back some law professors from Berkley came up with the idea of the Defensive Patent License (DPL). I won’t go into all of the details here, but the general idea is that companies pool all of their patents together and if one member of the pool is sued for patent infringement, that member can use any of the patents in the pool to file a countersuit. The main thrust of this is to allow open-source developers to acquire a patent “war-chest” to protect themselves just like the bigger companies. While this idea sounds great in theory, in reality it won’t work. Besides that fact that the only people that are going to join are going to be people that don’t have patents, or only have a few, this does nothing against patent trolls, people who don’t create a product, just hold the patent and sue companies that infringe.

     So when Slashdot pointed me to this article about how to make the DPL viable, my intrest was aroused. His idea involves using the patents in the pool offensively, suing anyone who infringes and is not a part of the pool, creating what he calls a “Fair Troll”. He believes that this tactic will force companies to join the pool or risk being sued. I should have known that Mr. Mueller’s ideas wouldn’t have been well thought out or intelligent. Does he not realize the point of Mutually Assured Destruction? If the pool starts suing companies for patent violations, those companies are going to retaliate with infringement suits of their own. And to make things worse, these companies have the entire pool of DPL members to pick from (and they could pick more than one). Why would these companies, who are trying to avoid patent litigation, open themselves up to it?

     I understand that software patents are not popular and that the patent system needs revamping, but the DPL and Fair Trolls are not the answer. Like it or not, software patents are probably not going to go away (though the Bilski decision should be coming soon) and developers need to learn to deal in a world with software patents.Taking a bunch of companies that have little or no patent power and joining them together will create a pool of people with little or no patent power. But at least in the defensive it’s better than going alone. Taking that same group and going on an offensive campaign is just suicide.

Stephen Burch

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     With a pending Supreme Court decision in the Bilski case and a couple of high profile patent cases, patents issues are again coming to the forefront of discussion. I decided that I should write a few posts discussing what software patents are, what their impacts are on innovation, and what I believe should be done (if anything) to the patent system as it relates to software. But before you read my stuff, read this. This is an article by former Sun CEO Jonathan Scwartz discussing how his company and other large software companies use software patents. It’s not an opinion piece, it’s just the reality of software patents in the real world. You should read that before continuing.

     Article I, Section 8, Clause 8 of the U.S. Constitution gives Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” From this line, Congress and the courts have created a massive body of law that includes patents. In simple terms, a patent gives an inventor the right to keep other people from copying their invention. This slightly outdated article gives a good summary of patent law. According to the article, there are five requirements to have a patent issued on an invention: (1) patentable subject matter, (2) utility, (3) novelty, (4) non-obviousness, and (5) enablement.

     The first issue for software comes with (1) the patentable subject matter. Some inventions are easy to understand as they are physical things. Software is not a physical invention, but rather instructions. It tells the computer how to accomplish a task. Think of software as the description of the process that a computer uses to solve a problem (these processes are typically called algorithms). But are these process inventions patentable? State Street Bank held that a process is patentable if it “produces a useful, concrete and tangible result.” So in the case of software, if the program produces something useful, it is good to go. Think of a program that gives a starting point and an ending destination, producing a travel route. The travel route is useful, concrete, and tangible so it would meet the first test under State Street Bank.

     But all is not quiet on the software patent front. The Bilski case was decided by the Court of Appeals for the Federal Circuit and, in all practicality, threw out the test from State Street Bank. The court held a few things, two of which are important for this discussion: first, “[a] claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” And second, “to the extent that signals are involved and are transformed, they are not ‘representative of any physical object or substance.’” So, would the travel route example hold up under Bilski? The example as stated isn’t tied to any particular machine or apparatus. So it seems to fail this part. And depending on how you think about it, there is no real transformation as the user is still left with the same computer. But I think that there really is a transformation: the user started with two geographical points and ended up with a travel route. That’s pretty transformative if you ask me. But the court states that signals are not representative of any physical object and computers do nothing more than transform electrical signals. So are software patents doomed under Bilski? According to the Wikipedia article, four of the five initial patent rejections due to the Bilski case came from IBM for software-type patents. But Gene Quinn believes that Bilski only requires patent attorneys to rephrase software patents in a way that ties it to the computer. Mr. Quinn is a patent attorney and an electrical engineer and neither engineers nor lawyers like to let the impossible stand in their way. While he doesn’t explicitly say it, the feeling I get from the article is that short of an explicit ban of patents involving any type of software, patent attorneys will figure out a way to work within the law to patent software regardless of what the court or Congress does.

     There are still four other requirements for an invention to be patentable. I’ll discuss the others later in regards to how I believe the patent process should work concerning software, especially the non-obviousness and novelty requirements. I hope this gives you some sort of an idea as to what software patents are. It will give my discussion tomorrow about the effects that software patents have on innovation (good and bad) a little more context. And it’s topical. As I write this, patent attorneys around the U.S. are on the edge of their seats waiting for the U.S. Supreme Court to announce their decision in the Bilski case.

Stephen Burch

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