As many of you undoubtedly already know, the United States Court of Appeals for the Federal Circuit decided two weeks ago that software should be patentable if and only if it is tied to a machine. The case, In re Bilski, asked the Federal Circuit to determine if a purely mental business method was patentable, but the Court decided to write a decision that brought into question the future of software patents. There is no justification for the Federal Circuit doing this, and in fact most of the Court’s opinion is not actually the law moving forward because all the did was pontificate about a matter not necessary to reach a resolution, so if district court judges do what they are supposed to do legally they will simply ignore the Federal Circuit’s determination that software can only be patented if it is tied to a machine. Hopefully that is exactly what will happen, but I have my doubts.

Let me be perfectly clear. Patents will continue to be applied for to attempt to cover software. I foresee no fewer applications, but it is clear that each application will require far greater detail and much more attorney time. So the Bilski decision will do nothing for patent attorneys other than create more opportunity for revenue. Bilski will turn into something of a full employment act for patent attorneys and agents who work in this space. But just because the decision will be good for business, at least the patent attorney business, doesn’t mean that it is a good or wise decision. The decision was unnecessary and violates any norms of conservative judicial philosophy and instead supplants restraint for activism, which is unwise in my opinion. All the Bilski decision will do is make it more costly for entrepreneurs and small businesses to protect the assets they create, thereby helping those who have achieved market dominance to maintain that market dominance.

What is the harm in allowing software patents? Isn’t the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none. We should not tolerate intellectual dishonesty because it is expedient. The trouble is that patents are being granted on “inventions” that are not new or which are obvious. The problem is not that software presents an inherent evil.

As far as I am concerned saying that software is not patentable subject matter is akin to saying that a car battery is not patentable subject matter. No one could seriously argue that a new and non-obvious car battery would not be patentable subject matter. In fact, that is exactly what many researchers are trying to find right now, albeit not the same type of car battery that we are used to inserting under the hood. You see, the car itself is just a bunch of pieces of metal that sit there fastened together to create a tangible shell that has taken on an identifiable structure. The car has lots of potential, but without some kind of fuel it doesn’t even have potential energy. It merely has potential to move from place to place under appropriate conditions. Hardly something that is useful in any real world sense of the word.

Lets assume that our hypothetical car is loaded with fuel, wired up appropriately and we can even give it an XM radio receiver for good measure. None of that will do anything other than make the vehicle more expensive. There is still no potential or use for the vehicle. What transforms this otherwise magnificent machine (or Ford F150 as the case may be) into something special is the battery. It is the battery that allows the vehicle to start and to play the XM radio receiver, which is particularly important when you are trying to listen to Mik & Mike in the morning on ESPN Radio. So it is the battery that brings everything together.

Of course, there are other components of the car that are required to create the magic, so lets not get to far off with the illustration. But hopefully you can see where I am going with this. A computer is just a bunch of metal, plastic, wires and various other parts that has the potential to do something, but which never will do anything, without software to create the spark. The computer itself is merely a means to operate software, and this point really cannot be challenged in any serious, logical and honest way. Who wants a computer without software? Exactly no one! So why then does our patent system require us to act like it is the computer that is the revolutionary aspect? I just do not see the mileage in ignoring truth and living by some fiction that is thrust upon us.