Can abstract ideas be patented? Sometime soon, the U.S. Supreme Court is expected to make a major decision regarding the constitutional scope of patents. The decision could have major implications for the legality of free software.
At the heart of the case known as Bilsky v. Kappos is a "business method patent" application that sought to obtain a patent for a method of managing the risk of bad weather through commodities trading. Bilsky did not build any invention or device, as traditional patents have required; he came up with a method of doing business that orchestrates human knowledge and interactions, for which he believes he deserves a patent.
But should the government be in the business of granting legally protecting monopolies on abstract ideas such as “business methods” and mathematical algorithms? The outcome of the case is being watched closely by the free software community because it could negatively affect the future of collaboratively developed code.
The far-reaching dangers of broad patents is nicely explained in a new thirty-minute video, Patently Absurd: How Software Patents Broke the System, by independent filmmaker Luca Lucarini and financed by the Free Software Foundation.
The film is a lucid, interesting introduction to a topic that is rightly seen as arcane and complicated. It explains the origins of software patents and their negative effects with clear explanations and stories from some of the leading IP attorneys associated with the free software movement.
Patents are given out so freely by the U.S. Patent and Trademark Office that companies have the legal rights to all sorts of abstract ideas, some of which may be embedded in software. “One-click shopping” was one of the earliest, most infamous business method patents granted. “If you’re selling online, at the most recent count there are 4,319 patents you could be violating,” said David E. Martin, chief executive of M-Cam Inc., an Arlington, Va.-based risk-management firm specializing in patents.
A key issue in the Bilski case is the appropriateness of granting patents for software and other sorts of collaboratively produced Internet works. It once made sense to grant patent monopolies over inventions developed by individuals or companies, but now that the Internet makes online collaboration so powerful and efficient, should anyone be allowed to privatize collectively generated knowledge and then charge premiums for it?
As far as software patents in particular, the point is made that software essentially consists of algorithms, and such "pure knowledge" has never been patentable. In addition, software typically consists of lots of components that are aggregated together in novel combinations. This can make it difficult to innovate (which is the point of granting patents) if a lot of knowledge is locked up in patents.