Supreme Court Delivers Open Source Smackdown

16 Years Ago khess 0 647 Views

There's big news in the software patent front from none other than The U.S. Supreme Court. In the case of Bilski vs. Kappos, handed down yesterday, is a major blow to the anti-patent movement, specifically the no software patent groups.

Florian Mueller, founder of the anti-software patents movement (NoSoftwarePatents) in Europe, provides the following commentary on the subject:

Yesterday's Supreme Court ruling in re Bilski was unfortunately a clear victory for those favoring an expansive patent system and the inflation that it entails. The two "inventors", Bernard L. Bilski and Rand Warsaw, saw their patent application thrown out, and that makes them the losers of the court proceeding, but few people will care about them now.

The big losers are:

The free software and open source communities
Software patent abolitionists
Small and medium-sized companies who can't or don't want to play the patent game
The proponents of bogus treatments: Linux Foundation, Open Invention Network etc.
The Patent Absurdity movie
Red Hat
Google's foray into new markets (Android, WebM)
Salesforce.com (Marc Benioff)
The "captive court" theory
IBM's open source credibility

You can read the entire entry by Mr. Mueller on his blog.

Florian Mueller is a software developer and government affairs professional. In 2004, Florian founded the NoSoftwarePatents campaign, which contributed to the European Parliament's rejection of a proposal for European software patent legislation. At the time, Florian was an adviser to, and small shareholder in, MySQL AB, the company behind the popular open source database. For his forceful opposition to software patents, he received several awards, including the European Campaigner of the Year 2005 Award (Economist Group) and CNET UK's Outstanding Contribution to Software Development Award. Florian was twice nominated to Managing Intellectual Property magazine's annual list of the top 50 most influential people in IP.

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Generated 10 Months Ago

As noted, the Supreme Court in Bilski v. Kappos (decided June 28, 2010) rejected Bilski’s hedging patent application but did not adopt the Federal Circuit’s “machine‑or‑transformation” rule as the exclusive test for process eligibility under 35 U.S.C. §101. The Court treated the particular Bilski claims as an unpatentable “abstract idea,” so the application failed — but the opinion deliberately avoided a broad pronouncement that would neatly resolve software patentability across the board. (law.cornell.edu)

The practical result at the time was more uncertainty than a clear victory for either side. Headlines that read this as a sweeping win for pro‑patent interests overstated it: Bilski denied the specific claim while leaving flexible standards for lower courts and the PTO to apply going forward. That uncertainty is the important context missing from many early reactions. (law.cornell.edu)

What changed the playing field more decisively were later Supreme Court decisions applying the “abstract idea” / “inventive concept” framework — notably Mayo v. Prometheus (2012) and Alice Corp. v. CLS Bank (2014). Those cases (and the PTO guidance and exam procedures that followed) made it significantly harder to sustain patents that merely claim abstract ideas implemented on generic computers. In other words, Alice did more to curb broad software/business‑method patents than Bilski itself. (law.cornell.edu)

Practical takeaways for open‑source projects and small shops: preserve and publish prior art to block overbroad claims; consider license provisions that address patent grants/termination (see GPLv3 patent provisions); evaluate membership in defensive communities such as Open Invention Network; and watch PTO/ court guidance closely. These are mitigations — not cures — and teams with material exposure should get IP counsel tailored to their jurisdiction and portfolio. (gnu.de)

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