Drafting the next US amicus brief

Template:BilskiBilski 3 is a brainstorming project to be ready for next time when the case against software patents has to be explained to a judge. The name hints at its structure: End Software Patents wrote a brief for the 2008 in re Bilski case, and that brief was expanded and further developed for the 2009 Bilski v. Kappos case. There will not be a third Bilski case, but there will be other cases in future, so, what arguments should we be documenting now to be ready when it happens?

• The 2008 in re Bilski brief
• The 2009 Bilski v. Kappos brief

Harms the emerging model: collaboration

Software development is in a transition phase as the model of companies developing whole software systems is being replaced by companies collaborating, by individuals collaborating as community projects to develop software and systems, and companies collaborating with community projects.

In the collaborative model, parties enter and leave the domain very quickly. This is incompatible with the time scales of the patent system - even more so than the previous software development models. Thus, software patent block not only a useful element of the domain, but also the evolution of increasing reliance on that element.

(I hope this is clear. The wording is a bit strained because I keep trying to avoid talking about the software market or industry - we should never exclude individual programmers from the dialogue.)

The countries pushing software patents are no longer the main holders

The USA, whose companies are the main holders of software patents around the world, holds most of the power and profits that can be obtained with software patents. This may explain why the USA pressures other countries to allow software patents too. However, as other countries expand their patenting of software, the USA will lose this position, so in discussions in the USA, it should be highlighted that this "benefit" of software patents is not going to last and thus the situation will only get worse.

For this we need figures about what percent of software patents, granted by the USPTO and by other patent offices, are given to companies from the USA companies.

This argument may be unnecessary outside the USA. But if necessary, it should be equally applicable in other countries.

Non-abolition "solutions" are failing

This point was left out of ESP's Bilski v. Kappos brief because it was difficult to explain this point convincingly while keeping it short enough for inclusion in the brief.

Disproportion in advice

When courts or patent offices permit external bodies to submit comments or arguments, there is a disproportionately high quantity of contribution from patent lawyers and large corporations. Maybe this could be documented and pointed out as a reason to give more consideration to the anti-software-patent arguments which are few but represent a very under-represented section of society.