Bummed Out About Bilski

I’ve been quiet on my reaction to Bilski because I’ve got an OpEd floating around that might get published in the next few days.  It’s been rejected by one major publisher because according to the senior editor  “it didn’t fit their opinion on the case” and another major publisher because “no one really cares that much about patents.”  Ok – whatever.  Fortunately, I have a blog, but I’ll wait a few more days and see if I can get someone in the traditional media to care.

In the mean time, my partner Jason has written a post titled Bilski Redux and Why You Shouldn’t Believe Everything You Read and Fred Wilson has also weighed in that it’s time for Congress to buck up and take some action in his post Bilski and Patent Reform.

For a great summary of the case, take a look at the Groklaw article titled Here’s Bilski: It’s Affirmed, But . . .No Decision on Software Patentability.

I expressed my opinion briefly in a ReadWriteWeb article titled Supreme Court: Software is Patentable… Sometimes where I said that I was profoundly disappointed with the outcome.

“They had a chance to address a serious and deep issue surrounding innovation in the software industry. Instead of taking a clear and forward looking position, they effectively punted on the hard stuff, surrounded it with ambiguity, and increased the mess we find ourselves in surrounding software and business method patents.”

I’ve got a lot more to say but let’s see if the OpEd shows up somewhere else first.  If not, I expect Independence Day will liberate me.

  • I think Senator Leahy is right on this – its the fault of old statutes Congress has not addressed and/or amended. I don't necessarily blame the SC for this – their hands are tied to the narrow issues they are presented with.

  • Fred Wilson is correct. The courts are not going to provide the necessary relief, and the job has to be done by Congress. People need to make it clear to their two Senators and their Congressman that eliminating all software and business process patents is very important to them and that their vote (and contributions) for that person is dependent on the politician having the correct view.

    In addition, the pro-elimination groups should compile a list of "Dirty Dozen," the 12 politicians with the worst views on this issue, and organize to defeat them at the next issue.

    James Mitchell http://www.jmitchell.me

    • You know I'm a very progressive guy and I consider myself to be mainly supportive of those ideals that support the common good and promote the general welfare, including open source and freedom from predatory patent infringement litigation

      But I also know that the realities of life require that each of us also be able to narrowly support the specific welfare of our immediate family (spouse and kids) with food and shelter. (Something perhaps the average VC has lost track of on a visceral level)

      So if one fancies oneself an entrepreneur, and given the times we live in it's likely our entrepreneurial passions are focused on the creation of novel and unique SW solutions, I would ask what remedies the "anti-SW-patent" supporters recommend for making sure that we "little guy" SW innovators don't get raped continuously by well-monied corporate and private equity interests when we happen to do something useful and sale-able using modern SW tools?

      A SW-Patent-Free universe is a lovely Willy-Wonka-esque romp for rich and powerful VCs and other members of the "I got mine" fraternity. But what about the poor SW folk who have a great idea and who sweat and suffer to make it a reality only to discover that the "VC Plantation Owners" have co-opted that great idea away from the poor "SW Sharecropper" because there is no law against said plantation owner stealing the "land" from the "Sharecropper" using superior power and money?

      So…perhaps it would be important to explain how we might provide some "civil rights" to poor SW innovators who aren't VCs or are not "made men" serial entrepreneur henchmen who report to the VC "Dons".

      Again, I'm not a fan of irrational and obvious patents of any nature and I'm definitely averse to the idea of predatory patent trollers stifling innovation. I think the latter actually verge on committing treason against society.

      But I also don't wish to squash the passions of the entrepreneur because they know "Big Money" will just steal his/her idea because there is no protection offered by a rational patent system.


      • Here are my thoughts.

        I don't feel strongly about IP protection laws one way or the other. I'm open to discussions on the issue, but some of the comments made by some anti-IP folks in some forums seem so poorly thought out and are so knee jerk that they are easy to discount.

        As you have mentioned, I want to know how my life and the lives of my friends and family will be improved. Very little of that ever gets mentioned in the IP discussions. Mostly I hear about how people want access to IP because they believe all ideas/content should be free. Or how companies are having to spend so much money defending themselves.

        It would be much better to frame the issue in terms of job creation. Or lower food and health care costs. Etc.

        Tell me, your average voter, why I should get behind this. And why is it more important to me than all of the other many issues I'm concerned about when I decide who to vote for and what causes to support?

        This just isn't a hot button issue for most people in the country and the legislators know that so they have little incentive to act.

      • Bill Mosby

        How easy is it to find out whether your nifty new idea was already thought up 20 years ago and then patented by somebody else 10 years ago? It looked to me like it would take a lot of time or else expertise that I didn't have to find that out in the maze of (mostly bad, I think) software patents granted, or else about to be.

        • The reality is it's not particularly easy to find out if there is prior art. It's much easier now than in the past with the internet and search engines though.

  • Technology moves so fast that by the time a software patent is approved, the technology is already mainstream and everyone else has already "invented it too". (Just ask Open Market/Divine about their "online shopping cart" patent). By the time you have the patent approved the software's life is already over.

    The true test of great software is "does it capture/keep audience, does it make money and does it live a long and healthy life." Software that meet this criteria can be copied as much as people like, and it won't matter because the original is god (goddess!)…..

    Technology moves fast, and that's the downside here. We, in the technology world, are so far ahead in our thinking about this that we could be called radicals. The average population is not like us. Most of the people "against" software freedom probably don't even know how to answer their own email and they certainly don't use an iPhone. It's hard to fight an issue with someone which they don't fundamentally understand.

    As the baby boomers transition out of key decision roles and the younger Generation X transitions in, mindsets will be different. The educational process needs to continue, and it will take longer than we'd like. We just have to keep taking the stand for it.

    • rtoennis

      The software's "life" isn't over if people are still using it when the patent is approved. If it's a great idea then eventually the patent will get awarded and the first innovator has a chance to earn some wealth off his entrepreneurial moxie.

      Thats why "Who invented it first" is part of the patent system. The point of a patent system is to encourage people to push the envelope of innovation, in the face of pain, with the goal of "inventing it first". That drives innovation.

      When we reach a human utopia where energy is free, wealth is massive, poverty is banished and all is shared equally than we can open source everything and patents will be moot. Until then we actually have to have a way to reward innovators to suffer financially without having to worry about well monied "idea thieves" reaping the benefits of their sweat and leaving them with nothing.

      Wealthy VCs who are against all patents have simply lost track of the fact that though they may live in that utopian space the majority of the rest of us don't……yet. (See I'm an optimist. 🙂 )

      • This is not a \”wealthy VC issue.\” Historically, few VCs have expressed an opinion one way or the other on software patents.

        When I was a student at MIT, I wrote my master's thesis on diffusion of innovation in the software industry (1988). I had no money, I wasn't a VC – and at that time I felt that trade secret and copyright were more than adequate protection for software innovation. I feel even more strongly about that today, having been involved in the creation of a number of software companies, both as the entrepreneur and the investor. I've written extensively about this on this blog in the patent section.

  • You know what you need if you want to make this a cause that people care about.

    Make the equivalent of "Grapes of Wrath," only show how a family in Detroit, whose house was foreclosed upon, were victims of unfair patent laws.

    Go for the heart.

  • What if we were to require the patents to be substantially narrow and complete that another person given adequate tools and materials can accurately re-create the subject of the patent?

    After all, is that not how we look at older patents complete with detailed engineering drawings?

    This would kill overly vague patents. I have no problem with very specific patents for inventions. I would like to invite anyone who thinks that software patents are a good idea to read a software patent. As a software engineer, I should be able to figure what is really being patented. However, patents are intentionally written excessively broadly to the point of absurdity.

    For example, here is a newly granted Microsoft patent 7,747,965 regarding control of opacity of multiple windows (one implementation that comes to mind is the "peek" feature of Windows 7):

    Just try to read that thing. Then notice how many patents it references, which you also must read…

    For example, here is a definition of computer

    "With reference to FIG. 1A, an exemplary system for implementing the invention includes a general-purpose computing device in the form of a computer 110. Components of computer 110 may include, but are not limited to, a processing unit 120, a system memory 130, and a system bus 121 that couples various system components including the system memory to the processing unit 120. The system bus 121 may be any of several types of bus structures including a memory bus or memory controller, a peripheral bus, and a local bus using any of a variety of bus architectures. By way of example, and not limitation, such architectures include Industry Standard Architecture (ISA) bus, Micro Channel Architecture (MCA) bus, Enhanced ISA (EISA) bus, Video Electronics Standards Association (VESA) local bus, and Peripheral Component Interconnect (PCI) bus also known as Mezzanine bus."

    ISA, EISA, MCA, VLB have long been extinct.

    Network protocols are also being discussed… This is a patent on a UI element!

    If granted at all, it should be very short.

    "Problem – multiple overlapping windows in a software environment make it difficult to find the desired window"
    "Invention – make all windows temporarily transparent"
    "Steps to reproduce – Sample code in C plus plus (IntenseDebate hates pluses) using Win32 API with build instructions – (enclosed)"
    "Patent examiner compiled the code and tested it on a representative sample of operating system prevalent in this era – (endorsed)"

    Edit: this patent actually appears to be about the Vista Win-Tab mechanism, but I already thought of a different thing because the behavior of Windows 7 Peek is similar in nature.

    • angrydude

      perhaps you should know that all Mshit patents are alike: they start with general description of computer and proceed with meaningless description of their "invention"
      95% of all Mshit patents have serious validity problems (in view of KSR)

      MShit patents are shit and they know it (at least the PhD dudes from Mshit research I spoke to at IEEE conference were well aware of this)

    • Bill Mosby

      This is similar to a feature of some 3D graphic design systems, Sketchup for one. But I suppose the application is a little different, applying to OS windows rather than objects in a design.

  • Even more importantly, how about forcing disclosure of 100% of the source code as part of the process. That would change the dynamics als.

    • Bill Mosby

      I wonder how many software patents even have any working code behind them in the first place.