27 September 2010

Free Software Foundation Incites USPTO Letter-Writing Campaign

Back in July, the USPTO issued its Interim Bilski Guidance to assist the examining corps in determining subject matter eligibility under 35 U.S.C. § 101 in view of the United States Supreme Court decision in Bilski v. Kappos.  It also invited the public to comment on this guidance, with submissions closing on 27 September 2010.

The Free Software Foundation (FSF) has caught on to this "opportunity", encouraging like-minded citizens to write to the USPTO to ask them to please stop issuing software patents.  You can read their "news posting" here, if you have not already encountered it via one of the many mailing lists, blogs or social networking sites through which it has been spreading like wildfire over the last few days.

The FSF has provided would-be email-writers with the following suggested text to get them started:

Software patents hurt individuals by taking away our ability to control the devices that now exert such strong influence on our personal freedoms, including how we interact with each other. Now that computers are near-ubiquitous, it's easier than ever for an individual to create or modify software to perform the specific tasks they want done -- and more important than ever that they be able to do so. But a single software patent can put up an insurmountable, and unjustifiable, legal hurdle for many would-be developers.
The Supreme Court of the United States has never ruled in favor of the patentability of software. Their decision in Bilski v. Kappos further demonstrates that they expect the boundaries of patent eligibility to be drawn more narrowly than they commonly were at the case's outset. The primary point of the decision is that the machine-or-transformation test should not be the sole test for drawing those boundaries. The USPTO can, and should, exclude software from patent eligibility on other legal grounds: because software consists only of mathematics, which is not patentable, and the combination of such software with a general-purpose computer is obvious.
Of course, the first paragraph amounts to a policy-statement, that has little (if anything) to do with the state of the law post-Bilski.  We would not even know where to begin in pointing out the numerous inaccuracies in the second paragraph.

And neither paragraph actually addresses the matter on which the USPTO invited comments: the Interim Bilski Guidance itself.  One would have to actually read the document in order to comment meaningfully on it, and we are not sure that the FSF would want to let the facts get in the way of a good Quixotic campaign!

Aside from possibly annoying the USPTO with a deluge of near-identical messages, it is difficult to imagine this campaign having any effect on examination practice. 

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