U.S. Courts: New Criteria for Software Patents
A current U.S. court case would make it harder for software patent trolls to file for dubious patents and make legal claims based on existing ones.
In what has been termed the Bilski Case (or simply "Bilski"), a U.S. Federal Circuit Court of Appeals handed down a ruling that redefined how software can be patented. The case surrounded how far a marketable idea can be protected, based on the patent filing of Bernard Bilski and Rand Warsaw, who had founded a company named Weatherwise and wanted to protect their ideas on processing weather risk data. Some patent lawyers considered the case similar to one involving software. To present just such an argument in terms of Free and Open Source Software (FOSS), U.S. Linux distributor Red Hat submitted an amicus curiae brief in response to the appeal, with the American Civil Liberties Union (ACLU) following up closely behind. In the opinion of the law platform Groklaw, these briefs contributed considerably to the Bilski appeal ruling, with positive ramifications for free and open source software.
The Appeals Court rejected the Bilski appeal by ruling that the patent idea did not produce "useful, concrete and tangible results" and used this as a gauge for future patent considerations. FOSS representatives (Red Hat lawyers among them) have felt that a lack of this gauge has led to countless frivolous patent applications in the past. Although the court did not settle the issue specifically of how or when software is patentable, it did pave the way by setting some new guidelines and criteria. Red Hat responded to the court decision and described its consequences for the FOSS community in a press release.
The court dropped the previous software patent criteria (which had produced a wave of claims in the late 1990s) in favor of two new ones. To make a process patentable, they ruled, it must be "tied to a particular machine or apparatus" or it must "transform a particular article into a different state or thing." Depending on how broadly "tied to a particular machine" is interpreted, the effect could be significant for future patentability claims. If interpreted too broadly, tenuous ties between software and a general purpose computer would do little to discourage future patent claims. However, FOSS advocates cited past patent cases where the "particular machine" argument as related to a general purpose computer failed to hold up in court. In the dissenting opinion of Bilski Judge Newman, "For the thousands of inventors who obtained patents under the court’s now-discarded criteria, their property rights are now vulnerable."
Nevertheless, FOSS lawyers see the decision as a good basis for changes to patent laws. They caution, however, that the software world will have to figure on increasing lobbying efforts from past patent seekers and "beneficiaries of the status quo." The Red Hat press release ends on a positive note with "We have a battle before us, but it is a battle we can win."
Subscribe to our Linux Newsletters
Find Linux and Open Source Jobs
Subscribe to our ADMIN Newsletters
Support Our Work
Linux Magazine content is made possible with support from readers like you. Please consider contributing when you’ve found an article to be beneficial.
News
-
Canonical Bumps LTS Support to 12 years
If you're worried that your Ubuntu LTS release won't be supported long enough to last, Canonical has a surprise for you in the form of 12 years of security coverage.
-
Fedora 40 Beta Released Soon
With the official release of Fedora 40 coming in April, it's almost time to download the beta and see what's new.
-
New Pentesting Distribution to Compete with Kali Linux
SnoopGod is now available for your testing needs
-
Juno Computers Launches Another Linux Laptop
If you're looking for a powerhouse laptop that runs Ubuntu, the Juno Computers Neptune 17 v6 should be on your radar.
-
ZorinOS 17.1 Released, Includes Improved Windows App Support
If you need or desire to run Windows applications on Linux, there's one distribution intent on making that easier for you and its new release further improves that feature.
-
Linux Market Share Surpasses 4% for the First Time
Look out Windows and macOS, Linux is on the rise and has even topped ChromeOS to become the fourth most widely used OS around the globe.
-
KDE’s Plasma 6 Officially Available
KDE’s Plasma 6.0 "Megarelease" has happened, and it's brimming with new features, polish, and performance.
-
Latest Version of Tails Unleashed
Tails 6.0 is based on Debian 12 and includes GNOME 43.
-
KDE Announces New Slimbook V with Plenty of Power and KDE’s Plasma 6
If you're a fan of KDE Plasma, you'll be thrilled to hear they've announced a new Slimbook with an AMD CPU and the latest version of KDE Plasma desktop.
-
Monthly Sponsorship Includes Early Access to elementary OS 8
If you want to get a glimpse of what's in the pipeline for elementary OS 8, just set up a monthly sponsorship to help fund its continued existence.