Protecting Software, post-Bilski
July 9, 2010
The Supreme Court threw a big stone into a small pond last week when they decided a case popularly known as Bilski and for the third time in 15 years changed the rules for the protection of software. I won’t weary you with all the ins and outs. But I do want to say, quickly, what’s changed in this area of the software industry and speculate a little about how this might affect things.
(By the by, not enough credit for all this can be given to a long conversation I had earlier this week with Robert Tosti of local IP law specialists, Brown Rudnick.)
Change 1: Many of the patents granted in the last 15 years that essentially try to patent a business process done in software are now called into question. They are NOT invalidated, per se. But the Supreme Court has also said that at least some business processes (like the eponymous Bilski’s) are not patentable, because they are “abstract ideas.” So the more like an abstract idea the patented process is, the less likely it can be enforced.
Change 2: You can still patent software, but in the absence of any guidelines as to what is an “abstract idea,” (not patentable), it is not clear that software patents will take the form they used to take. Clearly, any attempt to patent something in this area is now fraught, but clearly, a sequence of screens is less risky than (but also more limited than) the business process that the sequence is intended to support.
Change 3: Innovation in software is no longer as easily protected as it was when Amazon patented “one-click shopping.” (Tosti’s example of a patent that could well be still enforceable, but might not be). To get protection for an innovation, software companies will probably need to design and coordinate efforts in four separate areas of the law: patent law, copyright law, protection of trade secrets, and contract law. This will be expensive to do, and it will make enforcement complex (though also giving enforcement efforts lots of scope).
How will this affect software companies? Clearly, Bilski should give patent trolls some pause. (Not that companies like NTP are dissuaded. NTP just filed suit against Apple and Google, among others things claiming infringement of their e-mail-on-mobile-devices patent.) Software companies like Oracle and Salesforce now being sued by (depending on your point of view) greedy patent trolls or inventors who have had their rights trampled on by greedy software companies should feel that they have more ability to defend themselves than they did.
The one thing we won’t see is more justice. While people are trying to figure out what a patentable business process is, you’re going to all the overreaching, ambition, greed, arrogance, foolhardiness, self-delusion, and self-righteousness that you might have seen had you been in alive in the days of the Gold Rush.