It has already come to light that President Obama is interested in moving the United States federal government away from proprietary software to open source solutions. I am not sure this ought to a top priority that is so important that it is on his mind during his first 48 hours in Office, but it is apparently ahead of a lot of things. Personally, I would rather him try and use his vast fund raising abilities to raise the $1 trillion necessary to bailout the economy, but what do I know? I am just a patent attorney who thinks software ought to be patentable and that the Federal Circuit went way farther than it should have in Bilski. But I can’t help but notice that by making open source software a priority President Obama is potentially showing his hand and throwing in with those who would rather not see a strong and vibrant patent system. Perhaps I am reading to much into this and far to anxious about who he might appoint to be the next Director of the USPTO. Call me a worry wart if you will, but I don’t like where this might head. It is bad news for the software industry as we know it, and if he has these opinions on software what will his opinions on pharmaceuticals be?
A little more than 21 months ago the United States Supreme Court issued its decision in Microsoft v. AT&T, but not much has been written about this decision, at least not when you compare it with the amount that has been written about the other patent decision that was issued the same day by the Supreme Court, namely the obviousness decision in KSR v. Teleflex. The lack of coverage for the Microsoft/AT&T case is no doubt at least in part due to the fact that KSR v. Teleflex was so highly anticipated, and completely jumbled the law on obviousness to a point where you cannot get a patent on an invention if you actually thought the invention would work. Luckily the USPTO and the courts have not really followed all of what the Supreme Court said in KSR, but there is always that fear. It could also be said that the Microsoft/AT&T decision is of much less importance because it likely has relevance only in a segment of the technology industry. Of course, another reason may be because no one knows exactly what to make of the decision, thanks in no small part to a number of rather strange statements by the court.
The holding reached by the Supreme Court in the Microsoft-AT&T case is not terribly difficult to articulate. The Supreme Court determined that Microsoft was not liable for patent infringement under 35 USC § 271(f) because the version of Windows that was actually installed on certain foreign-based computers was not exported by Microsoft. While the holding is not terribly difficult to articulate, the strange and contorted logic employed by the Supreme Court does make it a real challenge to figure out what the Court was thinking. Nevertheless, I trace back the fall of proprietary software and the beginning of the end of software patents to the day the Supreme Court issued its decision in the Microsoft-AT&T case.
One curious aspect of the Microsoft-AT&T decision was the choice by the majority to characterize software that is not in a format capable of being immediately loaded onto a computer as “an idea without physical embodiment.” This cavalier observation is, of course, ridiculous. It is also proof why the Supreme Court ought to have nothing to say about patents or patent related issues. On top of that, if Justice Scalia really thinks patents are gobbledygook, like he actually said from the bench during the KSR oral arguments, then he ought to recuse himself from any patent cases that make their way to the court because he has emphatically stated that he just doesn’t understand patents or the issues. We don’t need any judges deciding cases when they clearly don’t get it, particularly when they have admitted they don’t get it to a national audience.
Of course the statement that software is an idea was dicta, and not binding on future courts. Notwithstanding, the comment did not seem to be ancillary, but rather an ill conceived, legally incorrect over simplification. If software is just “an idea” then it could certainly not be copyrighted and it certainly could not be patented, which will come as music to the ears of anti-software advocates around the globe, thereby only making it even harder to achieve widespread acceptance of intellectual property protection for software. Perhaps that was the idea all along.
Software is a tool and tools have always been patentable. The fact that the Supreme Court and others do not understand what software is or does ought not to be a reason to prevent proprietary protections. Speech recognition software, for example, is not only a tool, but a necessity for many individuals. There are many individuals who would not be able to enjoy even basic use of a computer absent speech recognition software. If the goal of the patent system is to grant limited exclusive rights in exchange for knowledge, information and inventions that will assist man, then why not allow for patentability of software? I know there are a lot of bad software patents, but why kill the entire industry when all you need to do is actually meaningfully apply the law to weed out those patent applications that define true innovation from those that are nothing more than window dressing?
The real problem with software patents, and the reason so many want to embrace open source, is that software causes a machine to operates in a certain way; but not just any machine, the machine that we all rely on every day – the computer. The arguments of the protesters and anti-software patent advocates seems to be that software is far too important be patented, far too fundamental to daily life to deserve exclusive protection. But if that is the foundational starting point for the debate, then how is it possible to justify any patent at all? With this rationale it would seem that the more foundational and important an invention the less deserving of patent protection. This is not to say that software is as important as a cure for cancer or an AIDS vaccine, but not allowing patents simply because too many people would have to pay royalties seems virtually certain to lead to a patent system that rewards those who inch forward rather than those who leap.
Many who object to software patents would rather see the entire patent system disappear. I never thought that was a real risk, until lately. With the direction the Supreme Court is heading, the fact that Congress cannot do anything on the issue of patent reform, and the fact that President Obama is investigating open source solutions makes me very worried about the future. Add that to the fact that all of our leaders seem to be abandoning the capitalistic model that has prevailed in the US since the beginning, and I worry that the US patent system might be a little to tied to capitalism to survive the current onslaught.
I hope I am overreacting. I really really do!