Unlike many of the visitors and contributors on this site, I am not a lawyer. I am a programmer who found this blog while chasing links across the Internet looking for information on software patents and what has now become one of the most anticipated Supreme Court decisions ever; Bilski v. Kappos. That was almost eight months ago at a time when I held what is probably a common view of software patents among programmers. Specifically, that they are immoral, unfair, and restrictive to innovation and creativity. I have since found that things are not as black and white as they appear and I’d like to share with you the problems as I see them, from a programmer’s point of view.
The communication between lawyers and programmers is admittedly poor. I can’t imagine very many people jumping through all the hoops to become a patent lawyer if they didn’t believe in the power of the patent system to help grow the economy. On the other hand, programmers who are frustrated with declining job security, declining benefits, and declining pay, often turn to leaders in their field, who demonize software patents. Those industry leaders who support software patents are usually the ones doing the laying off, cutting salaries, and outsourcing jobs, so it is understandable that they have questionable credentials when it comes to the opinions of the common programmer. How can we start to heal the wound and repair the damage that has already been done? We need to encourage more communication between the two parties if we are ever to end the “cold war” over software patents.
When last we left off our History of Software Patents series we were talking about In re Alappat, which by implication did away with the Freeman-Walter-Abele test for patentable subject matter by not mentioning the test whatsoever. Shortly after Alappat, a three-judge panel once again resorted to and applied the Freeman-Walter-Abele test in In re Trovato, but that was quickly withdrawn by an en banc panel of the Federal Circuit. So it seemed relatively clear that the FWA test had been abandoned. This believe was bolstered by the famous, or infamous depending on your view, case of State Street Bank & Trust Co. v. Signature Financial Group, Inc. and ultimately in AT&T Corp. v. Excel Communications, Inc., where the Federal Circuit reaffirmed its decisions in State Street Bank and Alappat.
In State Street the patent in question was U.S. Patent No. 5,193,056, which issued to Signature Financial Group on March 9, 1993. The ’056 patent is generally directed to a data processing system for implementing an investment structure which was developed for use in Signature’s business as an administrator and accounting agent for mutual funds. In essence, the system, identified by the proprietary name Hub and Spoke®, facilitates a structure whereby mutual funds (Spokes) pool their assets in an investment portfolio (Hub) organized as a partnership. State Street was in talks with Signature Financial to acquire a license, and when talks broke down they brought a declaratory judgment action to have the ’056 patent claims declared invalid.
Yet another day has come and gone without the United States Supreme Court issuing a decision in Bilski v. Kappos. According to Cover It Live, via the SCOTUS Blog, Chief Justice Roberts announced that the Court will have its final opinions on Monday, June 28, 2010, and that the Court’s term will close with the exception of remaining Orders in pending cases. (see 10:39 am mark of discussion at SCOTUS Blog). This is widely being interpreted as confirmation that Bilski will be issued on Monday, June 28, 2010, which admittedly seems extraordinarily likely, but call me crazy, I have a strange feeling something odd may be boiling behind the scenes.
Allow me to point out that everyone I have spoken to believes that Bilski will be decided this term and with only one day remaining everyone to a person believes the decision will be announced next Monday shortly after 10:00 am Eastern Time. But why wouldn’t the Chief Justice just come out and say that all pending cases will be decided and no cases will be held over until the next term? Why must he say things in ways that leave open the possibility that one or more cases could be held over? For example, the Court could have its “final opinions” issue on Monday, June 28, 2010 and the Court’s October 2009 Term could come to an end, and Bilski still not issue. That would make what Roberts said today true, and we would still have a case held over.
The legal, business, and scientific communities eagerly await the Supreme Court’s ruling in Bilski v. Kappos and many scholars, business leaders, and legal professionals try their best to anticipate how the Court will rule. Many patent attorneys and patent agents are drafting two sets of claims for their clients and the one they file will depend on how the Supreme Court rules.
For all of the opinions, articles, and conjecture, all one need do is study the law and look at the precedents to know that anticipating how the Supreme Court will rule in a case is akin to trying to gaze into a crystal ball. So, what will be the future of business methods as patent-eligible subject matter? Will the machine-or-transformation test stand? What will be the fate of the Bilski patent? An educated guess is the best that one can hope for in this situation.
Straight from the Broken Record department, the United States Supreme Court has again not issued a decision in Bilski v. Kappos. At this point it seems that not having a decision is anything but surprising, and in fact rather predictable. Bilski has now been pending for nearly 7.5 months.
The Court issued four decisions this morning, which were:
What makes this “no Bilski day” at the Supreme Court particularly interesting and noteworthy is the fact that the Supreme Court did issue a terrorism and First Amendment decision in Holder v. Humanitarian Law Project today, a decision that many if not most would have thought to be harder and more important than the Bilski case. Chief Justice Roberts, joined by Justices Stevens, Scalia, Thomas, Alito and Kennedy, the Supreme Court held in Humanitarian Law Project that the preenforcement challenge to 18 U.S.C. 2339B does create a case or controversy capable of being addressed by the Courts under Article III of the United States Constitution. On the merits the Supreme Court held that the material-support statute is not unconstitutionally vague and the United States Court of Appeals for the Ninth Circuit improperly merged the vagueness challenge with the First Amendment challenge. Finally, the Supreme Court ruled that the material-support statute does not violate the plaintiffs First Amendment right to free speech or the First Amendment right to freedom of association.
Eventually we are going to have a decision from the Supreme Court in Bilski v. Kappos, or we will know that the case will be held over until the next term of the Court, which beings in October 2010. The current Supreme Court term comes to an end on June 28, 2010, so something will soon happen worth discussing.
From the shameless commerce division, with at least a dose of self promotion, I can announce that PLI has selected Hot Topic Briefing dates for a Bilski v. Kappos audio briefing, which comes with CLE credit. Registration will not be open until we have a decision date, but the dates have been selected, with all faculty clear to participate. The dates are:
If decision on Monday June 21, PLI program on June 23, 2010 from 1pm to 2:30pm
If decision on Thursday, June 24, PLI program on June 28, 2010 from 1pm to 2:30pm
If decision on Monday, June 28, 2010, PLI prgram on June 30, 2010 or July 1, 2010 (to be announced) from 1pm to 2:30pm
Again another Supreme Court decision day has come and gone and we do not have a Bilski decision. Shocking! Hardly. The stars seemed to be lining up nicely for today. Yesterday was the 30th Anniversary of Diamond v. Chakrabarty, and my Internet connection was out this morning for a time, so I was convinced today would be the day and I was going to miss it. But stand down! Call in the dogs! Put away the search lights. Another no Bilski day at the corner of Maryland Ave and First Street NE in our Capitol city, the District of Columbia.
On Monday I wondered whether the Supreme Court would hold Bilski over until next term in Groundhogs Day: Speculating on No Bilski Decision this Term. On June 10, 2010, Chief Justice John Roberts spoke at the Judicial Conference of the District of Columbia Circuit at Nemacolin Woodlands Resort, located approximately 40 miles south of Pittsburgh, Pennsylvania. In his 17 minute speech the Associated Press reports that Roberts explained the Supreme Court should be able to issued decisions in all of the cases argued this term. Not exactly a guarantee that Bilski will be forthcoming this term, wouldn’t you agree?
I am just about out of ways to creatively announce that the United States Supreme Court has once again had a decision issue day come and go without issuing a decision in Bilski v. Kappos. So lets get the obvious out of the way quickly. The Supreme Court issued four decisions today, Monday, June 14, 2010, and none of them were the highly anticipated Bilski decision.
I know Supreme Court watching is so much fun that that it should almost be illegal, right? Wrong! Supreme Court watching seems akin to that Bill Murray movie – Groundhogs Day – where he kept waking up every morning in the small town to relive another day — the same day. Unlike in the movie where Murray received chance after chance to get it right, the Supreme Court has but once chance to get this massively important decision correct, so I say let them take their time. Even if that means they hold over the Bilski decision until next term.