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
-
Gnome 47.2 Now Available
Gnome 47.2 is now available for general use but don't expect much in the way of newness, as this is all about improvements and bug fixes.
-
Latest Cinnamon Desktop Releases with a Bold New Look
Just in time for the holidays, the developer of the Cinnamon desktop has shipped a new release to help spice up your eggnog with new features and a new look.
-
Armbian 24.11 Released with Expanded Hardware Support
If you've been waiting for Armbian to support OrangePi 5 Max and Radxa ROCK 5B+, the wait is over.
-
SUSE Renames Several Products for Better Name Recognition
SUSE has been a very powerful player in the European market, but it knows it must branch out to gain serious traction. Will a name change do the trick?
-
ESET Discovers New Linux Malware
WolfsBane is an all-in-one malware that has hit the Linux operating system and includes a dropper, a launcher, and a backdoor.
-
New Linux Kernel Patch Allows Forcing a CPU Mitigation
Even when CPU mitigations can consume precious CPU cycles, it might not be a bad idea to allow users to enable them, even if your machine isn't vulnerable.
-
Red Hat Enterprise Linux 9.5 Released
Notify your friends, loved ones, and colleagues that the latest version of RHEL is available with plenty of enhancements.
-
Linux Sees Massive Performance Increase from a Single Line of Code
With one line of code, Intel was able to increase the performance of the Linux kernel by 4,000 percent.
-
Fedora KDE Approved as an Official Spin
If you prefer the Plasma desktop environment and the Fedora distribution, you're in luck because there's now an official spin that is listed on the same level as the Fedora Workstation edition.
-
New Steam Client Ups the Ante for Linux
The latest release from Steam has some pretty cool tricks up its sleeve.