Bilski

Open*Law: 2011 in review

Open*Law: 2011 in review

As we wrote in last year's year-in-review, patents are a big focus at the intersection of open source and law. This year was no different--2011 saw Microsoft Corp. v. i4i Limited Partnership go before the Supreme Court. It was affirmed, 8-0 on June 9, rejecting Microsoft's request to change the burden of proof on patent invalidity from clear-and-convincing evidence to the preponderance standard.

One of the big patent stories of 2010 had good effects in 2011 as we saw first year of decisions applying Bilski to software. » Read more

0 Comments

Bilski's growing up, and smacking down some bad software patents

When the Supreme Court declined to speak to software patenting in the Bilski case, there was wailing and gnashing of teeth in the open source software world. The new Bilski test for patentable subject matter looked at first like the status quo for software patentability. But, being the sort of person who tries to check clouds for a possible silver lining, I noted a possibility that courts and the Board of Patent Appeals and Interferences would read the test to invalidate some software patents. Later I noted that there were a number of early decisions finding software unpatentable. » Read more

7 Comments

Open*Law: 2010 in review

By nature of our interests and where open source commonly intersects the law, we post a lot about patents in the Law channel on opensource.com. And it's been an interesting year for patents.

In May, a verdict was delivered in favor of Red Hat and Novell in an infringement case based on bad software patents owned by "non-practicing entities." Rob Tiller's post on it, Total victory for open source software in a patent lawsuit, was the top article across opensource.com for the year. » Read more

0 Comments

Conflicts in open source business models

I can't imagine a world in which compromise and collaboration could be more important than in an open source business model. The model itself opens a Pandora's Box of issues that create a minefield that must be navigated on a daily basis and makes those concepts critical to success. Think, for an instance, about a world in which one or many of the possible points of differentiation are freely shared—and some even given away—without condition to parties whose interests are naturally misaligned with yours. » Read more

3 Comments

Is software too abstract to be patented?

The serious problem of proliferating bad software patents was not solved by the Supreme Court's Bilski decision, but now it's looking like it may be part of the solution. The early case law applying Bilski is much more encouraging than expected. The new Bilski test focuses on whether an application attempts to patent “an abstract idea.” That new test has already been applied to reject applications for quite a few bad software patents, and with more lawsuits, it could invalidate a lot more.  To advance on this, we need to figure out out better ways to explain what software is and show when it is an unpatentable abstract idea. » Read more

40 Comments

Diversifying Saudi Arabia through open source and its university-by-design

Last week I attended the EPIC conference in New York City. One of the more interesting topics came by way of Saudi Arabia. If you haven’t heard of King Abdullah University of Science and Technology, or KAUST, you’re missing out on one of the grander experiments at the intersection of government, culture, economic development, and academia.   » Read more

0 Comments

The PTO addresses Bilski and software patents

When the Supreme Court decided the Bilski case, it didn't speak directly to the issue of software patents.  But the Bilski majority  emphasized that abstract ideas are not patentable, and recognized that allowing patents for abstract ideas could hinder innovation.  Thus there's still room for discussion of the legal standard for when, if ever, there should be patents on software.  » Read more

11 Comments

Eben Moglen on what it takes to keep defending FOSS

Eben Moglen's keynote address at LinuxCon last week, "Doing What it Takes: Current Legal Issues in Defending FOSS," called for a strategic shift in the free software movement. Moglen, the founding director of the Software Freedom Law Center (SFLC) and one of the principal drafters of the GPLv3, said the economy of sharing and the economy of ownership are not mutually hostile, but mutually reinforcing, then outlined three steps for ensuring the continued coexistence between the free software and business communities. » Read more

2 Comments

Bilski and software patents

The Supreme Court case of Bilski v Kappos was billed as a case over business methods, but at its core it was over an application for a patent on software, and the denial of that application sets a good example that may lead to the denial of other software patents. » Read more

1 Comment

Initial thoughts on Bilski

The Supreme Court finally issued a decision in the Bilski case today [PDF]. For those troubled by the problems surrounding software patents, the opinion will be disappointing, because it does not resolve those problems. But it would be a mistake to view the opinion as a victory for the proponents of expanding software patents. In fact, there are some aspects of the opinion that auger well for the future. » Read more

5 Comments