US Supreme Court Building, Washington, DC

On Monday, November 9, 2009, the United States Supreme Court will hear oral arguments in the much anticipated Bilski case, which could well decide once and for all whether business methods and software remain patentable in the United States. I will be in attendance at the oral argument, which will take place after a lunch recess. I will be joined by John White , the creator of the PLI Patent Bar Review Course and patent attorney with Berenato & White. My intention is to write and post throughout the day on Monday, leading up to the oral arguments and then in the afternoon as soon as I an after oral arguments are completed. John and I will then participate in a PLI Hot Topic Briefing on Wednesday, November 11, 2009 from 1pm to 2pm ET. We will be joined on this briefing by Scott M. Alter of Faegre & Benson LLP and Douglas R. Nemec of Skadden, Arps, Slate, Meagher & Flom LLP, both of whom along with John White are co-chairs of PLI’s 4th Annual Patent Law Institute. The title of the PLI briefing is Bilski Supreme Court Arguments: Eyewitness Report and Expert Analysis, and CLE credit is available. As always, PLI Privileged Members may attend for free, as they may do with virtually all PLI programs. Those who are not Privileged Members can also join in the briefing for a standard fee. PLI has also decided to make this briefing and other pre-recorded Bilski presentations freely available to any members of the media who may be interested in obtaining a deeper understanding of the issues surrounding this extremely important case.

On October 30, 2008, the United States Court of Appeals for the Federal Circuit issued a landmark decision in In re Bilski. The United States Supreme Court has accepted the Bilski case and will hold oral arguments on Monday, November 9, 2009. My plan is to be present for the oral arguments, and I have submitted a request to the Supreme Court for press credentials for the day. I still have not heard back from the Clerk of the Supreme Court, and it is my understanding that the Supreme Court has never provided press credentials for those who write primarily online, which is interesting in and of itself given the nature of the Internet and the fact that niche reporting is done far better (typically) by bloggers. Nevertheless, in order to prepare for the Supreme Court oral argument I am picking up the History of Software Patents series. The History of Software Patents Part I appeared in January 2009, and focused on US Supreme Court cases in the software space, namely Gottschalk v. Benson and Diamond v. Diehr. The History of Software Patents Part II appeared in April 2009 and focused on Federal Circuit development of law in Arrhythmia Research Technology, Inc. v. Corazonix Corp., and the supposed demise of the Freeman-Walter-Abele test. Part III now picks with In re Alappat.

William Shakespeare

Earlier this week, on October 27, 2009, Amazon Technologies, Inc., received US Patent No. 7,610,382, which relates to a computer implemented method of marking copies of content distributed on a network. More specifically, the patent discloses and claims a variety of embodiments of a method and associated apparatus for programmatically substituting synonyms into text content distributed through a Web service. Embodiments include having a synonym substitution mechanism that will replace selected words in text with synonyms for those selected words, such as by substituting the synonyms in excerpts of copyrighted works that are provided to via a Web service interface. Tip of the hat to Slashdot for finding this patent and bringing it out into the open, but the major thrust of the patent and its potential importance was unfortunately downplayed. The submitter did recognize that in one version of the invention the method can be used to identify and call out copyright infringers, but then snidely joked about a minor aspect of the patent by saying “anti-piracy measures should trump kids’ ability to spell correctly, shouldn’t they?” Perhaps it is to much to ask for the masses to take any software related patent seriously, but there is no doubt this is an innovation and a good example running up to the Bilski Supreme Court arguments why software innovations should be patentable if they satisfy the other patentability requirements; namely if they are new and non-obvious.

On the same day – October 22, 2009 – that an Apple patent application relating to embedded advertisements in an operating system published, the Redmond Giant, Microsoft Corporation, had US Patent Application 20090265604 publish, which seeks to protect a method for displaying a graphical representation of the vitality of a social network. This patent application was filed on April 21, 2008, and is one of many related to social networking that Microsoft has pending presently.  A search of Patent Office recordings using FreePatentsOnline.com shows there are 19 issued US patents to Microsoft containing the term “social network” or “social networking” and 279 pending US patent applications filed by Microsoft containing one or the other of those terms.  This has become an all to familiar business plan for Microsoft, namely scrambling to catch up with whatever the current hot trend is.  Of particular note, Microsoft has in recent years been late to the party with respect to portable MP3 players, only introducing the Zune once the iPod had established industry dominance.  Microsoft has also been late to the search engine business, feverishly attempting to catch up to Google; they have come to the video gaming market only to be behind Sony PlayStation; and they have famously struggled with operating system failures, requiring a completely new OS to be unveiled just days ago in order to address the embarrassing failure of Vista.

Steve Jobs, with hair. His official photo from his Apple Bio page.

Earlier today a pending non-provisional utility patent application assigned to Apple Computer published.  This application, US Patent Application 20090265214, is titled Advertisement in Operating System, and covers exactly what the title implies; namely an operating system that is capable of displaying a variety of advertisements to users. You are likely to have heard of the first listed inventor, Steven Jobs, the CEO and co-founder of Apple Computer, Inc. While it is difficult to know the purpose and strategy behind a patent application, the attorneys at Fish & Richardson in Minneapolis, Minnesota, who drafted and filed the patent application certainly did a very good job describing just about every conceivable feature and alternative that could coincide with the displaying of advertisements to users of an operating system. It almost sounds funny to call the displaying of advertisements within an operating system “a feature,” particularly given the annoying, ubiquitous and ever more intrusive nature of advertising these days. In any event, the patent application is well written, albeit it written in pre-Bilski style at least with respect to the claims. If Apple does want to pursue this all the way to a patent I suspect there will be plenty of opportunity to do so, and there will certainly be allowable claims that fall within this disclosure.

As the open source movement continues to mature the industry is increasingly recognizing that truly free and purely open software does not provide a usable business model that can and will allow for growth.  As Matt Asay of CNET properly recognized (see Asay comment after comment 2), while it is nice to ponder open source companies remaining private and foregoing the public funding route, by refusing to proceed down a path that would lead to a large infusion of cash is to doom the open source movement and ensure that it never really becomes mainstream.  Whether anyone likes it or not, innovation takes time and costs money, and innovation associated with open source software is no different.  Sure, a computer programmer with time on their hands can write code and freely give it away, but that is not a business model or innovation strategy that will lead to widespread acceptance or use.  In order for open source companies to grow they need to rely on investors who fund development, and investors are only going to be interested in funding development if there is a proprietary strategy in place.  It is as simple as that.

Over the last week a heated debate has been raging here on IPWatchdog.com regarding whether patents should exist at all. See Reality Check: Anti-Patent Patent Musings Simply Bizarre and Responding to Critics: My View on Patents & Innovation. I have offered a point by point debate where everyone answers the same question in 300 to 500 words, and as yet I have no takers, so you can decide yourself why that is.  Notwithstanding, this firestorm started when I questioned why any inventor or company would want a patent attorney representing them who has as his articulated position that 0 years of patent term is the most appropriate solution. If there are those out there who think a patent without any term or exclusive rights is best then they have the right to exercise their preference by simply ignoring patents altogether. Of course, when other companies do get patents and do use the rights and law to their benefit these same folks cry foul. Simply put, you cannot have your cake and eat it too! If you don’t like patents then don’t get them, but then also expect to be a target of all those in your industry who do get patents.

This post is long over due, and quite frankly it is because I thought I had already posted it several months ago. As I am getting back into the swing of things and gearing up to write more about software, software patents, Parts III and IV of the History of Software Patents (see Part 1 and Part 2), I want to highly recommend The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business, written by Robert Plotkin (who not too long ago wrote Why Wishes Should be Patentable for this blog), a patent attorney located in Boston, MA, who is also an Adjunct Professor of Law at Boston University. If you are pro-software patent you need to read this book because it will likely give you some wonderful insights that you can use to help you convince non-believers, and maybe even persuade a patent examiner or two. If you are anti-software patent I would also recommend you read this book as well. Plotkin’s positions are somewhat radical in that not only does he think software should be patented, but he wishes should be patentable as well, and that is exactly what will happen as computer automated inventing becomes increasingly more realistic.