Bilski brainstorming

Jurisprudence

in_re_Alappat, Judge Rich’s opinion that to load a program onto a computer is to build a new machine. Explain why that's wrong.

Modern uses of free speech

Web sites and wikis are nowadays part of association and speech.

Why software is different

The pop-up patent is not an isolated case that slipped by an overworked patent examiner. Systematic differences in how software and machines or chemicals are constructed cause software patents to be systematically overbroad or obvious.

There are a dozen SSRIs on the market that did not infringe on the Prozac patent. But in software, the pattern has been reversed: most patents cover ideas like the pop-up window, regardless of implementation, so they tend to be too broad.

In other domains, the costs of the patent system can be offset by revenue from the patent-using product. In software, the victims often can't afford to be involved in the system, so "winning" isn't about having a valid patent, it's about which model you're coming from.

The applications don't necessarily resemble the infringing software.

Calculate the number of patents infringed per line by looking at Linux kernel's size at the time and using OSRM's and Microsoft's claims.

With this much infringement, swpats are clearly not a good property right. I can infringe without knowing. In fact most infringers do so without knowing. (Can we use the infrequency of triple damages to show what percentage of infringers are unaware?)

Software ideas rely so much on abstract concepts that applications do not give a clear picture of what idea(s) they cover. As a property right, it doesn't give proper notice, as Patent Failure explains.

Timescales don't work for software

With the terms of applications being hidden for at least 18 months, and more recently up to 8 years, patents do not fit the speed at which software ideas are put into use.

The disclosed idea is 99% useless after 20 years.

Free software and other collaborative models

FS is the principal emerging model, and patents conflict with it. That's bad in itself, and it's protecting the old against the new.

How Apache was written.

Notable free software: GNU/Linux, Firefox, OpenOffice.org, Apache, Sendmail, BIND,

In domains where all players are companies, the failures of the patent review system (regarding obviousness or newness) are a nuisance. For software projects, they're fatal.

Number and breadth of people involved

Patent thickets wouldn't be a problem if there was only one company in a field. If there were two, they could talk, make a deal, and get on with their work. The complexity and overhead increases with the number of parties. The Linux kernel was written by 418 programmers from 35 countries. (4,519 according to http://www.linuxfoundation.org/publications/whowriteslinux.pdf, but must check how many entities that makes - 10 programmers from one company is just one entity) Do we have info for GNU? GCC? GNOME?

Software writers and distributors do not monitor the patents of others, do not perform patent searches (even IBM doesn't!), and the numbers are too different for this to ever change.

Should the Greenbay packers have been monitoring XX's patent filings? Kraft foods the filings of XX? etc. the filings of XX?

Should the virtual-dub developer, a hobbyist, have been monitoring Microsoft's patent filings? And what were his options faced with the threat? This is an unfair, asymetric dispute.

Who are the targets? It's not students or hobbyists, but it is free software developers, it is website makers (so it does include students and hobbyists), - the restrictions spill out of the industry and into other industries and even into people's daily lives. Today, ordinary people make websites. That's a trend. Active participation in the digital age is on the increase - let's not stifle it.

Example: video formats

Google's Chris DiBona's quote about Theora.

Were all the h264 patents filed while researching to make h264?

See Andrew Grove's statement about uncertainty and speculation.

Standards

And with standards, it's even worse: doing it "different" is wrong.

To many parties

With the mpeg video format there are 250?? patents, held by XX companies, and how many implementors of video? Hundreds, surely...

Cost of the limp measures to reduce harm

Find costs of all the OINs, patent commons, OSRM (defunct),

Lloyds' insurance was killed before it began.

EFF's patent busting.

These initiatives often carry the name "Linux" or some association to Linux, or open source / free software - but their funders are mostly pro-swpat companies for whom GNU/Linux is a minority of revenue.

Antitrust doesn't work

Research In Motion (RIM) example (with NTP?).

EU example.

Innovation: patents not needed, actually harmful

Microsoft built its software empire without patents. It's only in the monopoly-entrenching period that they've obtained large amounts of patents and used them.

"artificially prop up an industry in decline" - or "an industry and some companies", and "facing new competition" rather than in decline. Find what large percentage of *software* patents end up in what small number of hands.

Bessen & Hunt: patent filing replaces spending on R&D

Copyright

Patents block my use of copyright: publish my work. Patents are an asset on the balance sheet, but they kill my copyright asset. All the large operating systems were built on copyright, none on patents, but now new operating systems are having their copyright nullified by the established players.

who's submitting briefs

Looking at the CAFC, the briefs come from the very small minority that profit from all this and represent very little the users and developers of software.

Swpats benefit the megacorps, the patent trolls, and the patent lawyers. The people at risk aren't submitting briefs.

Uncertainty

"If you can’t tell the boundaries, it ain’t property." - James Bessen & Michael J. Meurer: Patent Failure

According to David M. Martin, CEO of a patent risk management firm, “if you’re selling online, at the most recent count there are 4,319 patents you could be violating. If you also planned to advertise, receive payments for, or plan shipments of your goods, you would need to be concerned with approximately 11,000."

Harming competition

The 2003 US FTC report.

Adobe and Macromedia quote in The Economist.

Trend Micro being targeted by anti-spam company.

patent offices overloaded

We are ruining the patent system by taking examiners off worthwhile patents and having them do insane review.

Disclosure

What's disclosed is unreadable. We're talking about innovation that wouldn't be done by someone reasonably skilled in the art, but the patents themselves aren't even readable by experts in the art. (Hmm, I need to make it clearer what my point is here.)

Patents are supposed to prevent people from relying on trade secret law, but in software they still do exactly that.

Conclusion

What if the government needs something but a patent holder refuses? Now put everyone else in that position. Everyone else has something in common with the US government: they write software.

Wonder if the the SC violates any swpats, maybe by their website. A tabbed web pages patent in the EU exists, so it probably has a USA counterpart.

unsorted

Can we put the Bill Gates 1991 quote in a brief?

Patent trolls and speculation (again, see Andy Grove's speech). This is where the smart money is invested, unfortunately.

They're not being used for competition, they're being used for litigation. [Can we make something like Patent Failure's fig-6.5 but just for swpats? - check footnote 11 in that book for their sources - STUDY - can/should we argue that a lot of payments regarding SMES, which are more common in the software industry, are doing before the case goes to court, so the cost is even higher for software in an unquantifiable way, but certainly higher?]

Software innovations that still have a use after 20 years are not useful because they're innovative, they're simply useful because they're required - such as for compatibility. NEED TO MAKE A BIGGER DEAL ABOUT THIS: There's a very important difference between being attractive (useful in an "I want it!" way) and being necessary.

Can we note in the brief how many software patents we violated while making this brief? Or just make a joke that had we used Word and enabled CustomXML, we would have.

Swpats are needed to fund litigation, not innovation. Look at where all the money's going. http://en.swpat.org/wiki/Category:Patent_infringement_suits

Can we say that tools used by the general public for communication can't be restricted by patents? I'm thinking of twitter and other micro-blogging patents tools being used for emergency alerts.