Post-Bilski Steps for Anti-Software-Patent Advocates

Lots of people are opining about the USA Supreme Court's ruling in the Bilski case. Yesterday, I participated in a oggcast with the folks at SFLC. In that oggcast, Dan Ravicher explained most of the legal details of Bilski; I could never cover them as well as he did, and I wouldn't even try.

Anyway, as a non-lawyer worried about the policy questions, I'm pretty much only concerned about those forward-looking policy questions. However, to briefly look back at how our community responded to this Bilski situation over the last 18 months: it seems similar to what happened while the Eldred case was working its way to the Supreme Court. In the months preceding both Eldred and Bilski, there seemed to be a mass hypnosis that the Supreme Court would actually change copyright law (Eldred) or patent law (Bilski) to make it better for freedom of computer users.

In both cases, that didn't happen. There was admittedly less of that giddy optimism before Bilski as there was before Eldred, but the ultimate outcome for computer users is roughly no different in both cases: as we were with Eldred, we're left back with the same policy situation we had before Bilski ever started making its way through the various courts. As near as I can tell from what I've learned, the entire “Bilski thing” appears to be a no-op. In short, as before, the Patent Office sometimes can and will deny applications that it determines are only abstract ideas, and the Supreme Court has now confirmed that the Patent Office can reject such an application if the Patent Office knows an abstract idea when it sees it. Nothing has changed regarding most patents that are granted every day, including those that read on software. Those of us that oppose software patents continue to believe that software algorithms are indeed merely abstract ideas and pure mathematics and shouldn't be patentable subject matter. The governmental powers still seems to disagree with us, or, at least, just won't comment on that question.

Looking forward, my largest concern, from a policy perspective, is that the “patent reform” crowd, who claim to be the allies of the anti-software-patent folks, will use this decision to declare that the system works. Bilski's patent was ultimately denied, but on grounds that leave us no closer to abolishing software patents. Patent reformists will say: Well, invalid patents get denied, leaving space for the valid ones. Those valid ones, they will say, do and should include lots of patents that read on software. But only the really good ideas should be patented, they will insist.

We must not yield to the patent reformists, particularly at a time like this. (BTW, be sure to read RMS' classic and still relevant essay, Patent Reform Is Not Enough, if you haven't already.)

Since Bilski has given us no new tools for abolishing software patents, we must redouble efforts with tools we already have to mitigate the threat patents pose to software freedom. Here are a few suggestions, which I think are actually all implementable by the average developer, to will keep up the fight against software patents, or at least, mitigate their impact:

• License your software using the AGPLv3, GPLv3, LGPLv3, or Apache-2.0. Among the copyleft licenses, AGPLv3 and GPLv3 offer the best patent protections; LGPLv3 offers the best among the weak copyleft licenses; Apache License 2.0 offers the best patent protections among the permissive licenses. These are the licenses we should gravitate toward, particularly since multiple companies with software patents are regularly attacking Free Software. At least when such companies contribute code to projects under these licenses, we know those particular codebases will be safe from that particular company's patents.