The Bottom Line on Bilski: Good or Bad for FOSS?

Software patents are a frequently debated topic here in the Linux blogosphere, but nary a conversation has taken place about them in recent years without at least some hopeful mention of Bilski.

Many, in fact, have looked to the longstanding case to finally put to rest the legal threats and patent quibbling that has beset the field.

To wit: “The courts are going to have to take a stand one way or the other on Bilski now,” asserted Slashdot blogger Josh Ulmer in a conversation here on LinuxInsider about Microsoft’s bizarre “sudo patent” last year.

A Beacon of Hope

Similarly, legal threats “should become less of an issue after SCOTUS rules on Bilski soon,” blogger Robert Pogson predicted in a separate discussion last month.

The case has been held up as a beacon of hope, in other words, by many who have despaired the state of software patents over the years.

Unfortunately, the decision handed down last week was not the one many had hoped for.

‘I’m So Ticked Off, I Could Spit’

“It’s a mess,” wrote Computerworld UK’s Glyn Moody, for example. “Where many hoped fervently for some clarity to be brought to the ill-defined rules for patenting business methods and software in the U.S., the court instead was timid in the extreme.”

Similarly: “The Supreme Court regrettably failed to provide guidance in the future about business method patents,” wrote the EFF’s Michael Barclay.

“I had hoped that the SCOTUS would do the right thing in the Bilski case and slap both business process and software patents down once and for all,” agreed Steven Vaughan-Nichols. “SCOTUS didn’t.

“I’m so ticked off, I could spit,” Vaughan-Nichols added.

And again: The decision was “unfortunately a clear victory for those favoring an expansive patent system and the patent inflation it entails,” FOSS advocate Florian Mueller lamented.

‘A Victory’

Yet amid all the cries of woe, there were some who saw it in a more positive light.

“A victory on the path to ending software patents” was what the FSF called the decision, for example.

Similarly, “although they didn’t specifically decide about software patentability as a category, they did provide some strong hints and some guidance that I view as helpful overall,” Groklaw opined.

No fewer than 235 comments had greeted that sentiment by Friday — in addition to the countless other opinions voiced by the hordes on Slashdot and elsewhere.

Faced with such diverse points of view, Linux Girl took to the streets of the blogosphere for more insight.

‘Linux Could Die by a Thousand Cuts’

The decision “seems anticlimactic, depressing and predictable,” was Hyperlogos blogger Martin Espinoza’s take.

Indeed, “Bilski is just a symptom of a much larger cancer,” Slashdot blogger hairyfeet opined.

Patents and copyrights “were designed so the little guy, the working man, could reap some profit from his work,” hairyfeet explained. “Now they are used as a minefield to ensure the little guy CAN’T profit from his work, because he can’t afford to navigate the minefield and has to sell to someone with a ‘patent warchest.’

“This is NOT what the founding fathers had in mind, and I’m sure you could power the eastern seaboard with the revolutions they are turning in their graves,” hairyfeet said.

The implications for Linux could be grave, he added.

“You can be assured Linux is violating so many patents and copyrights it isn’t even funny,” hairyfeet asserted. “All it will take is some patent trolls to set their sights on Canonical and [Red Hat], and Linux could easily die a death by a thousand cuts.”

‘We’re a Bit Better Off’

Alternatively, “a fairly neutral outcome” was Slashdot blogger David Masover’s view, on the other hand. “That is, they haven’t done anything to help the patent situation, but they also haven’t given any support, as far as I can tell, to any particular kind of patent.”

Similarly, “we’re a bit better off than we were, but not as far as I was hoping to be,” Montreal consultant and Slashdot blogger Gerhard Mack opined. “Hopefully we’re at least at the end of having people patent basic computing techniques.”

Pogson saw even more reason for cheer.

“The singers of doom for Free Software should read the ruling again,” he told LinuxInsider. “The majority of justices did not endorse software patents — Scalia skipped that part.”

Four justices endorsed business methods patents and software patents while four opposed them, Pogson noted. “That’s a tie, so the status quo survives,” he explained.

‘Toothless Against FLOSS’

Still, “the machine-or-transformation test remains useful, and the USPTO will likely follow that standard unless pushed by legislation or a more definitive ruling,” Pogson predicted.

Not only that, but “M$’s share price took a hit as those software patents deflated in value. They are now toothless against FLOSS,” he added.

Meanwhile, “the courts are now well aware that putting something on a computer is not innovation,” he concluded. “The justices did not question software; they questioned silly innovations of any kind.”

‘A Major Ground Shift’

Along similar lines, “I don’t see why everyone is so glum,” said Barbara Hudson, a blogger on Slashdot who goes by “Tom” on the site.

In noting the court’s assertion that abstract ideas are unpatentable, for instance, the EFF’s Barclay bemoaned the fact “like that is a *bad* thing,” Hudson pointed out. In fact, “it’s a major step in the right direction.”

The decision is actually “a major ground shift,” Hudson opined. “If you’re a patent troll, your ability to make threats just dropped. This in turn makes funding patent trolls more risky.”

While many are “bemoaning the fact that there is now no specific test,” meanwhile, that’s too pessimistic, she added.

“Since there is no specific test, there’s even *less* ability to predict that any particular patent troll will ultimately be upheld in court,” she asserted. “Investors — including investors in patent trolls — don’t like uncertainty. This is going to hurt their business at all levels.”

‘See You in Court’

Going forward, “the USPTO now has to be more careful of what they allow to be patented,” Hudson noted. “Without specific guidance, how is a troll going to argue that their patent *should* be accepted?”

Businesses, meanwhile, will increasingly be emboldened “to say, ‘see you in court’ instead of paying protection money to patent trolls,” Hudson predicted.

The courts “will have to slowly evolve new ways of interpreting the law,” but in the meantime, everyone opposed to business method and software patents will have “more time and opportunities to drive more nails into the coffin,” she added.

In short, “business method and software patents have hit their apex,” Hudson concluded. It’s all downhill from here — enjoy the ride.”

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