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World domination

Simon Phipps makes the observation that "The Microsoft/Philips brief is especially interesting, complete with a new way to define software patents so that the loss of the Bilski case doesn't mess up their world domination plans."

The Microsoft/Philips brief seeks to prove that software is patentable because it replaces tasks that could once be described as mechanical, and while declaring Bilski's claim to be invalid, insists on the patent eligibility of software, while taking the reader through the history of computing from Babbage to the semi-conductor. "As with any patentable process," it contends, "it is the real-world implementation - the actual acting out, or physical execution - of the process that makes it new and useful," and therefore concludes that software is patentable.

Speaking of Philips, George Monbiot has noted elsewhere how Europe's largest corporations, including Philips, emerged "during the period (1850-1907 in Switzerland; 1869-1912 in the Netherlands) when neither country recognised patents."

"In the 1890s," he recounts, "Gerard Philips, unhampered by intellectual property laws, started manufacturing the incandescent lamps developed by Thomas Edison in the United States. The absence of patent protection did not prevent him either from holding off European competition or from developing several important new designs." Curiously, the electric light bulb was invented and demonstrated by Joseph Swan at least ten years before Edison made his claim for a US patent.

The brief for Armanta, Asentinel LLC, CyberSource Corp. and Hooked Wireless Inc, who title their brief 'Entrepreneurial Software Companies', quotes a recent study that puts "the average value of a US Patent at between $93,463 and and $118,988," and notes that 10 per cent of patents in the US are on "data processing". This is seen as a justification for maintaining the past hegemony, and complains that "an overly narrow and limiting test" will result in many software related inventions "being left without adequate patent protection". In contrast the brief of Knowledge Ecology International, an NGO which claims no financial interest in the outcome, seeks to remind the Court that "The goal of the patent regime is not to reward inventors, but to encourage progress," and laments the negative impact of patents in the biotech and health industries, reminding us that patents on software are not the only issue before the Court.

The briefs on the flip side of the argument, such as the FFII brief, and the briefs for Red Hat and the Software Freedom Law Centre eloquently present the case against patents on software.

"Software is an abstract technology, and translating software functions into patent language generally results in patents with vague and uncertain boundaries," wrote Red Hat vice president Rob Tiller, the author of Red Hat's brief. "Under the Federal Circuit's previous erroneous approach, the risk of going forward with a new software product now always entails an unavoidable risk of a lawsuit that may cost many millions of dollars in legal fees, as well as actual damages, treble damages, and an injunction that terminates a business. Only those with an unusually high tolerance for risk will participate in such a market."

Next: Back to Work!

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