Bad week for Google's position vis-à-vis Oracle

Last week, Google's hopes of settling Oracle's Java patent suit on sweet terms were dealt important blows on two fronts.

One part of the bad news for Google is that a Federal Circuit ruling indicates software patents still can't be invalidated categorically on the grounds of "abstract" subject matter, a defense Google's answer to Oracle's amended complaint emphasized rather aggressively.

The other key development is the Apache Software Foundation's divorce from the Oracle-led Java Community Process (the Java standard-setting process). It's time to forget about possible concessions by Oracle to the open source community from which Google could indirectly benefit (since its Dalvik virtual machine is derived from a part of Apache's Harmony project).

Before I go into more detail on those latest developments, I'd like to reiterate an observation I already shared last month: unlike the other defendants in major smartphone patent cases, Google still hasn't countersued Oracle for infringement. Meanwhile, four months have passed since Oracle's lawsuit. Other defendants struck back within about two months, in some cases within one month. It's ever less likely that Google will do so. I guess it just can't.

All of this doesn't bode too well for Google and its Android mobile operating system.

101 isn't Google's lucky number

The number 101 connects Google and Oracle in two different ways. From the Googleplex in Mountain View, the fastest route to Oracle (Redwood Shores) is to take Highway 101 North. But § 101 of US patent law (35 U.S.C.) isn't the fast track to the invalidation of Oracle's Java patents that Google would like it to be, or that it would like the open source community to believe that it is.

I pointed out in a previous post that I couldn't see much of a point in Google's "abstract subject matter" defense (which it redundantly repeated), other than pandering to impressionable parts of the open source community who may be led to believe Google fights against software patents in general.

There are a few notorious disinformers out there who portray the US Supreme Court's Bilski opinion as the (potential or actual) beginning of the end for software patents. Contrary to what those propagandists claim (I doubt they even believe it themselves), that ruling (handed in June 2010) didn't do anything to turn US software patents into an endangered species. It was a decision in favor of continuity and a patent system that expands as technology evolves.

Google makes an unambiguous reference to the "abstract [...] subject matter" part of Bilski but there's no particular reason to assume that Oracle's Java patents would be non-statutory on that basis, or that such a defense would be stronger post-Bilski than it used to be pre-Bilski.

To me, the fact that Bilski didn't move the goalposts was immediately clear. I've spent a lot of time discussing substantive patent law with politicians and experts, so I can tell when a position on patent-eligible subject matter is liberal (such as Bilski) or restrictive. Steven J. Vaughan-Nichols, a markedly open-source-friendly journalist, viewed its impact essentially the same way. Bradley Kuhn, a leading free software activist, stated on this blog that "[p]ost-Bilski, it's become obvious that software patents can only be ended with legislative change." That's similar to what I had written in another follow-up to Bilski.

But anyone who believed those dreamers and disinformers instead of the more realistic and honest assessments I just mentioned would now have to grant me that I was right. The first ruling on a § 101 defense against software patents by the Federal Circuit (that's the instance right below the Supreme Court) since Bilski undoubtedly proves that software technologies continue to be patentable in the US subject to the same criteria as before.

CAFC decision on RCT v. Microsoft interprets Bilski

The United States Court of Appeals for the Federal Circuit (CAFC) heard an appeal in Research Corporation Technologies [RCT] vs. Microsoft, a case related to digital image halftoning (a set of techniques for improving display and print quality). Last Wednesday (08 December 2010), the CAFC announced its decision, a part of which disagreed with a district court's finding that "the asserted claims of [two of RCT's] patents were invalid under 35 U.S.C. § 101".

I haven't formed an opinion as to those particular patents. When I read the ruling, I was just interested in what principles it establishes for the patent-eligibility of software in general.

The CAFC points out that inventions are patent-eligigble unless expressly excluded from patentability by Congress:

Therefore, the Supreme Court has "more than once cautioned that courts ‘should not read into the patent laws limitations and conditions which the legislature has not expressed.’" Diehr, 450 U.S. at 182 (quoting Chakrabarty, 447 U.S. at 308). The Supreme Court has articulated only three exceptions to the Patent Act’s broad patent-eligibility principles: “laws of nature, physical phenomena, and abstract ideas.” Chakrabarty, 447 U.S. at 309.

The first part of that was also cited in the Bilski opinion, and what I quoted from Brad Kuhn is exactly what it means: if you want to do away with software patents, talk to politicians, not to judges. Of the three exceptions stated in the second part of the above quote, the first two are irrelevant to software patent issues and only the last one -- "abstract ideas" -- might play a role in a case like RCT v. Microsoft, or Oracle v. Google for that matter.

The CAFC then notes that the Supreme Court threw out its more restrictive approach to the Bilski patent application:

Indeed, the Supreme Court re-cently emphasized this statutory framework and faulted this court’s “machine or transformation” test for eligibility as nonstatutory. Bilski, 130 S. Ct. at 3227.

Therefore, the CAFC "perceives nothing abstract in the subject matter of the processes claimed in the [relevant] patents" and states that "[t]he invention presents functional and palpable applications in the field of computer technology."

That's the difference between patenting a mathematical algorithm and patenting a way to apply such an algorithm. Those who claim that software is mathematics and therefore too abstract to be patented don't take into consideration that such patents may be infringed by software that implements certain algorithms, but that is intellectually different from monopolizing mathematics per se:

These algorithms and formulas, even though admittedly a significant part of the claimed combination, do not bring this invention even close to abstractness that would override the statutory categories and context. The Supreme Court has already made abundantly clear that inventions incorporating and relying upon even "a well known mathematical equation" do not lose eligibility because "several steps of the process [use that] mathematical equation." Diehr, 450 U.S. at 185.

Again, I can't comment on those RCT patents, but I have looked at the patents Oracle asserts against Google and in my opinion, those Java patents aren't any more abstract than RCT's patents or, for example, all of the Google patents I've seen so far. Digital imaging is an operation performed by a computer processor on data stored in memory, possibly a storage device. Those Java patents involve the same hardware components except that they don't make explicit reference to output devices. However, one could also implement digital halftoning in Java, which shows that there isn't an obvious way to draw a line in the sand between RCT's and Oracle's patents.

In its attempt to take down Oracle's Java patents, Google will have to look for other arguments (such as prior art) than the subject matter defense it stressed so prominently in its recent court filing.

Apache's divorce from Oracle's Java Community Process is final

Probably knowing that it's very unlikely to do away with all Oracle patents and to prove that it doesn't infringe the valid ones, Google has strongly played the open source Java card in its public reaction to Oracle's patent infringement suit as well as the answers it filed with the court. Google would like the court to conclude that Oracle's open source commitments related to Java allow Google to use those patents anyway.

I can't see a convincing theory for that, but what's obvious is that Google hopes to put pressure on Oracle via the open source community.

Even if that wouldn't ever change the legal facts concerning what Google has done so far, Google may hope that under enough public pressure Oracle would be more likely to let Google carry on with its Dalvik virtual machine. I said before (at the end of this post) that I believe Google is barking up the wrong tree by trying to pressure Oracle on that basis. Oracle's support for open source and "open standards" ends where its business interests begin. That impression was just affirmed three weeks ago when I listened to Oracle's VP for Standards Strategy and Architecture, Don Deutsch, at a standardization conference.

Google might have hoped that Oracle would grant a Java license to the Apache Software Foundation's Harmony project. Since Google's Dalvik virtual machine is derived from a part of the Harmony code, Google would have been, potentially, an indirect beneficiary of such a license. This was like the reverse concept of having a carpet pulled off from under one's feet. Google hoped to have a missing carpet inserted under its feet and gain a legal advantage at least with a view to the future. But as I expected, Oracle stands firm.

On Thursday (09 December 2010) the ASF announced its resignation from the JCP Executive Committee -- the steering body of the Java standards-setting process. Over a disagreement as to whether Oracle had legal obligations to grant a certain Java-related license to the Harmony project, the ASF wanted to (at least temporarily) block all further progress concerning Java. But only Apache, Google and an individual member named Tim Peierls voted that way, while eWEEK reported that six members voted unconditionally in favor of Oracle's proposal (HP, Ericsson, Fujitsu, VMware, Intel, and Oracle itself) and six other members (SAP, IBM, Eclipse, Red Hat, Credit Suisse, Werner Keil) disliked licensing restrictions but voted for Oracle.

I read a rumor on the Internet that Red Hat was actively discouraging other members from a vote that would amount to "shilling for Google". A statement Red Hat gave to internetnews.com certainly indicates the Linux distributor's allegiance to Oracle. That's not suprising since IBM supports Oracle, and Red Hat follows IBM on pretty much every occasion.

The Apache Software Foundation risks getting sued

After Apache and Google lost the vote, TheRegister already expected the ASF's resignation. Oracle didn't seem to be surprised either. Its call on the ASF to "reconsider its position" doesn't mean that Oracle holds out rosy prospects to Apache and Google: it just shows that Oracle believes that the ASF will sooner or later have to yield and live with the fact that Oracle wants to retain some control over the licensing of Java and, particularly, Java-related patents. It's not an offer to hold peace talks and work out a compromise. It means that the ASF can have peace only on Oracle's terms.

If Apache doesn't accept Oracle's terms, I wouldn't rule out the possibility of Oracle suing the ASF over its Harmony project at some point. Doing so would merely be consistent with Oracle's infringement suit against Google. Right now, Oracle puts on a friendly face, seemingly extending an olive branch. But who knows for how long. At some point Oracle may conclude that the ASF will continue its collision course forever unless Oracle asserts its rights.

These circumstances limit the options Google would have should it be found to infringe Oracle's patents. The indirect Apache road to salvation appears to be blocked for the foreseeable future. Replacing Dalvik with another infringing technology wouldn't make sense either. However, most (if not all) Android applications have been written in Java, and Google must find a way forward for its third-party app developers. It can't just tell them that all of their applications can no longer be legally executed on Android and that they'd have to rewrite them with a completely different development system.

The GPL avenue wouldn't work either. While Google could theoretically take Oracle's GPL'd Java code (OpenJDK and/or parts of phoneME) and build some new GPL'd software capable of executing existing Android apps, it has clearly been Google's approach so far to eschew the GPL and its "copyleft" principle according to which anything derived from or incorporating GPL'd code must be GPL'd as well.

If Google had to do that, it might help its app developers temporarily but at the expense of creating major complications for the business strategies of its key partners among device makers. Those strategies are centered around closed-source, proprietary extensions to Android, which effectively make the platform "open in name only".

This is Google's dilemma: it has to work out things with Oracle in a way that Android app developers and Android device makers can live with. If Oracle's legal position is indeed very strong, if Oracle's intentions are about control as opposed to just money and if Google continues to be unable to countersue for infringement of any of its own patents, then there may be no solution that averts devastating damage to the Android ecosystem.

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Google makes weak showing against Oracle: more than three months later, still no counterthreat

On Wednesday (10 November 2010), Google filed its answer to Oracle's amended complaint dated 27 October 2010.

Five weeks earlier, on 4 October 2010, Google had already responded to Oracle's original complaint dated 12 August 2010. I commented on that answer and wrote that I was "unsurprised and underwhelmed" by Google's defense. Looking at the current state of the case, I think everything is still going according to plan for Oracle and this dispute is going to cost Google dearly.

I'm much less worried about Google than about the Android ecosystem as a whole, which could suffer severely because Google fails to protect it. (By the way, I use a Samsung Galaxy S i9000.)

Besides those who are totally in the tank for Google, only the impressionable can conclude from Google's unsubstantiated and unsurprising defense that Oracle faces a serious obstacle. It doesn't.

Oracle has many strings to its bow: seven patents, some copyrights (a subject on which I commented in my previous posting), and presumably more patents in stock should there be a need to up the ante.

The only thing that could realistically redress or even tip the balance would be a serious countersuit. More than three months after Oracle threw down the gauntlet, Google still hasn't been able to mount a counteroffensive. At this stage it's increasingly likely that Google just can't: other defendants struck back within about a month or two of being sued.

For the Android community as a whole and especially for developers whose applications run on the Dalvik virtual machine, Google's toothlessness is reason for grave concern. There's a saying that "the best defense is a good offense". That's also the name of the game in patent disputes. If Google can't play that game, it may be in for a nightmare.

Google still hasn't managed to do what Apple, Motorola and even HTC pulled off

Google's weak showing is particularly disappointing when compared with how all the other defendants in the major smartphone patent suits fight back:

• Nokia filed a complaint against Apple in Delaware on 22 October 2009 over 10 patents. Seven weeks later, on 11 December 2009, Apple claimed in the same court that Nokia infringed 13 of its patents. If Google acted like Apple, it would already have countersued Oracle in late September or early October.

• Apple lodged complaints against HTC with the ITC as well as a Delaware court on 2 March 2010. HTC responded with an ITC complaint against Apple on 12 May 2010 (later it also countersued in Delaware). So there were ten weeks between the original complaint and the first counterstrike. At HTC's pace, Google would already have countersued Oracle in mid October.

• Microsoft lodged complaints against Motorola with the ITC as well as a court in Western Washington on 1 October 2010. Less than six weeks later, Motorola filed its unsurprising countersuits. If Google were Motorola, it would already have countersued Oracle before the middle of September.

It's not just the time line that's worrying about the absence of a Google countersuit against Oracle. It's also the procedural stage. Apple's counterclaims against Nokia were made as part of its answer to the original complaint. HTC and Motorola instigated their suits even prior to their defensive replies. Google has already responded to Oracle's original complaint and the amended one, but merely defensively.

Google has presented a number of defensive theories but may not be able to support any of them

I can appreciate that Oracle vs. Google is such an important and interesting litigation that several media have already reported on Google's answer to Oracle's amended complaint. But I missed two fundamentally important pieces of information in the reports I saw: a reference to the continued and increasingly worrying absence of a countersuit by Google, and a statement of the fact that a defensive theory presented in such a filing isn't necessarily supported by any evidence.

There's nothing unusual about Google presenting defensive theories at this stage without substantiating them in any reasonably specific way. Other defendants do the same thing all the time. But until Google presents facts that really give meaning to those theories, the mere mentioning of those theories doesn't change a thing. What we see in that court document is a skeleton, but it hasn't really been fleshed out yet.

Google's defensive theories per se are just what every other deep-pocket defendant facing a major threat would do: point to each and every defense possible, including absolute long shots that may completely fail to convince the court when the facts are on the table. There's no penalty for that other than the cost of the lawsuit, which is negligible when you have as much at stake as Google does with Android.

Google obviously wants to keep all options open and clutch at every straw while it can. That's normal and legitimate, but a knowledgeable unbiased observer can't be overwhelmed by that. No one would have expected Google to throw in the towel in the early stages of the game.

Nothing unusual about Google's defense

Against Oracle's patent infringement assertions, Google puts forward all the usual defenses that you can find in any of the answers to the other smartphone patent complaints.

For example, every such document I've recently looked at contained an invalidity defense, and every claim of the patents-in-suit being invalid listed every conceivable theory including a reference to 35 U.S.C. 101, the paragraph on patent-eligible subject matter. Everyone seems to try. Google places particular emphasis on that theory but there isn't any particular reason to assume that those Java patents lend themselves to invalidation on the grounds of being too abstract. Also, the Supreme Court's Bilski ruling didn't expand the scope of what is considered too abstract for patent-eligibility: it merely reaffirmed the standards previously applied.

So my best guess is that Google stresses that part of its invalidity defense to curry favor with software patent critics in the open source community. That approach of submitting to a court of law what is actually directed at the court of public opinion was already displayed by Google's answer to Oracle's original complaint in another context (the Java Community Process).

On the copyright side of the case, it's not a major surprise that Google claims that others contributed the relevant program code. In an open source context, one might try that, but in the posting I just linked to I explained that this would only make a gradual difference. It certainly wouldn't be an excuse for continuing to distribute infringing material.

It's also obvious that Google will try to get some mileage out of the fact that Oracle/Sun published certain program code on open source terms. Google will try to leverage that fact in the patent and the copyright part of the case. However, since the code in question was published under the GPL, it's hard to see how Google's code (under the Apache license) would benefit. Those are incompatible open source licenses.

Again, I don't blame Google for not presenting more evidence at this stage. It's just that if it doesn't put forward some real substance later on, it will lose, and at this juncture I haven't seen Google do anything that would surprise (let alone scare) Oracle. When the decision-makers in Redwood Shores looked at Google's answer, they must have been extremely relaxed and thinking to themselves that so far everything was going according to plan. Whatever that plan is -- it could have major negative consequences for the Android developer community -- remains to be seen. Google hasn't thwarted it, and I increasingly doubt that Google will prevent Oracle from getting its way. Whatever that way may be.

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Does the S in FSF stand for "spamming"?

The Free Software Foundation appears to be turning, slowly but surely, into the Free Spamming Foundation.

Recently I criticized the FSF's belated statement on Oracle's patent infringement suit against Google for a host of reasons. Mostly, I felt that it was misleading pro-GPL propaganda. Note that I vigorously defended MySQL's GPL-based business model and "copyleft" in connection with Oracle's acquisition of Sun. But I reject overstatements of the GPL's (especially the GPLv2's) ability to deal with patent attacks. In addition to that, I criticized the FSF's call to spam Oracle CEO Larry Ellison's email account.

Now I just saw that spamming indeed appears to be a cornerstone of the FSF's strategy concerning patents. Its newest target: the United States Patent and Trademark Office (USPTO).

Under the headline "Encourage the USPTO to stop issuing software patents; deadline September 27", the FSF issued an urgent call on the community to answer a request for comments by the USPTO concerning the interpretation of the Supreme Court's Bilski ruling. For the future evaluation of patent applications, the USPTO wants to write up new guidelines reflective of the Bilski decision.

The Bilski case was (or could have been) a very important one

The Bilski case was an important one indeed, and I reported on it from several angles. In an immediate reaction, I described it as a major disappointment for the NoSoftwarePatents cause; I listed the top ten Bilski losers, among them the FOSS movement; I explained that doing away with software patents on the grounds of them being too abstract is a losing strategy; I also commented on IBM's outrageously cynical submission spitting in the face of the FOSS movement and on Google's position, which definitely didn't speak out against the patentability of software.

So I don't deny that the conclusions the USPTO is now going to draw from the Bilski ruling are an important step. However, spamming the USPTO, whose only job it is to apply the law (not to make it), is an ill-conceived and counterproductive approach. It's like protesting against foot soldiers. It won't do away with a single software patent. It won't reverse the defeat that the Bilski decision was for the abolitionist movement. But it will for sure reflect very unfavorably on the FOSS movement as a whole.

What the USPTO wants is well-crafted professional input

Even though consultations such as this one are open to the general public, patent law is a complex subject requiring a vast amount of knowledge, so what the USPTO really hopes to receive is input from professionals. Let me quote from its request for comments:

The Office is especially interested in receiving comments regarding the scope and extent of the holding in Bilski.

In other words, this is about legal interpretation. The Supreme Court took a position on some aspects of substantive patent law (the rules for what is and what isn't patentable), though not on as many as a lot of people hoped. Now it's about drawing the right conclusions from it.

You can't outvote the law

This isn't going to be a "democratic" decision-making process. It's not a vote on a TV show. If the FSF mobilized a million people to call for the abolition of software patents, it still wouldn't change the basis on which the USPTO has to operate, which is the law as it stands and as the courts, especially the highest one of them in the US, interpret it. Spam doesn't contribute anything of substance. It's just an annoyance and a distraction.

It would be perfectly appropriate for the FSF to make a substantive submission to the USPTO, or to encourage FOSS-friendly patent professionals to do so. But instead of arguing the real issue, the FSF just provides copy-and-paste paragraphs and general guidance and asks the community to tell the USPTO -- among other things -- how software patents "take freedom away from all computer users". Software freedom is a vision I like, but it's not a legal concept. It's not in the Constitution, it's not in the Supreme Court's Bilski decision, and it won't play a role in the USPTO's new guidelines.

An email campaign like that is a nuisance (to put it diplomatically). The USPTO doesn't make the law; it doesn't have the authority to interpret it like a court; it simply has to operate within the given framework. The FSF tries to put some blame on the USPTO but doesn't understand that US patent law was indeed designed to evolve expansively as new technologies are invented and adopted. Restrictions require democratic decisions, and the USPTO isn't a democratic decision-making body. Those decisions are the prerogative of Congress.

The FSF apparently knows that it can't persuade Congress of its anti-IP agenda. So it firstly rested its hopes on the Supreme Court (which made it pretty clear in the Bilski decision that if you want to exclude anything from patent-eligibility, you have to talk to the lawmakers, not to the judges) and now tries to pressure the patent office.

Email campaigns can be legit -- but not in this case

Let me point out that there are indeed situations in which it makes sense to mobilize citizens for email campaigns. In particular, if lawmakers are in the process of forming opinions and preparing decisions, it's perfectly in line with democratic concepts to let citizens voice their wishes, hopes, fears, concerns, doubts, whatever. Our directly elected representatives should listen to us.

Of course, it also depends on how, when and on what scale such campaigns are conducted. There are many circumstances that one must consider. Wherever such a campaign is inappropriate, it backfires. It gives the impression that the ones conducting it have lost on the basis of reason and resort to desperate and defiant spam tactics.

In a case like this request for comments by the USPTO, the only appropriate (and the only productive) input will have to be presented professionally, and there's no strength in numbers.

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Google's Bilski brief didn't advocate the abolition of software patents

After Oracle filed its patent infringement suit against Google, most of the initial reactions in the community expressed disappointment over Oracle's action. However, the more time passes, the more people have second thoughts. It's noticeable in the blogosphere and in discussion forums.

I try hard to be fair and as objective as humanly possible. With this posting I want to shed some light on Google's amicus brief in the Bilski vs. Kappos patent case. The Supreme Court of the United Status (SCOTUS) took its decision in late June, and it was a major disappointment and a setback for the free software/open source movement.

Some large IT companies filed so-called amicus curiae briefs (submissions to tell their views to the judges), and since Google is now being sued over patent infringement, it's worth taking a look at what the "Don't Be Evil" company did in connection with Bilski.

Google partnered with financial services organizations

Google filed its amicus brief jointly with Bank of America, Barclays Capital, The Clearing House, The Financial Services Roundtable, Metlife and Morgan Stanley.

All of those organizations Google partnered with are part of, or represent parts of, the financial services sector. While financial services companies are large-scale software users, it would have been a major surprise to find them take a position on software patents. After all, the Bilski patent application wasn't technically a software patent filing. It claimed a method for managing certain risks related to price changes in the energy market.

Also, those banks have business relationships with large software companies that want patent protection. So it's easy to see that they had a narrow focus (just the Bilski type of business method) as opposed to a broader agenda concerning patents including technical software patents.

However, those who oppose software patents looked at the Bilski case as an opportunity for the SCOTUS to establish criteria for patentable subject matter ("patent-eligibility") that, ideally, would have caused collateral damage (or collateral benefit from the anti-software-patent point of view) to the patentability of software.

Google's choice of partners in this is an indication that I wanted to mention because it's easy to understand. If they had partnered with (for instance) Knowledge Ecology International, the likelihood of a truly anti-software-patent brief would have been hugely greater. But let me now explain the content of Google's brief and why it isn't an anti-software-patent position.

Against straightforward business method patents

Google's brief speaks out against "patents on methods of doing business" and "abstract methods and mental processes like [the Bilski application]". It describes the essence of the Bilski patent application as "the abstract idea of managing the weather-related risks associated with energy pricing".

Such an idea could be implemented -- and nowadays would typically be implemented -- in the form of (a part of) a computer program. That's why Google's brief also argues against "patents on [...] software that merely implements such methods".

But this doesn't mean opposition to software patents that relate to other subject matter than the automation of such business methods.

Amazon's patent on the one-click order is probably the most famous business method patent, at least in connection with the Internet. In a totally unconcealed fashion, it could be categorized as a patent on a business method or on "software that merely implements" one. So it's the kind of patent Google proposed to do away with.

Google gave some examples of such patents that the US Patent & Trademark Office has granted: "method and apparatus for tax efficient investment management," a "process for creating a financial plan for ... funding of college education," a "system for funding, analyzing and managing life insurance policies funded with annuities," and a "system, method, and apparatus for providing an executive compensation system."

However, I said before: "in a totally unconcealed fashion". That's what the one-click patent and the examples listed in the previous paragraph are. But if Amazon had to file the patent in an environment where business methods are formally unpatentable, its patent attorneys could try to draft around that restriction. For an example, they could describe it as a signal processing patent, and instead of the convenience for the buyer they could argue with a reduced number of signals (or if it's a "communications" patent, with reduced network traffic). In the end they might monopolize the underlying concept anyway. Maybe they would even obtain a broader monopoly.

That's what I'd call a disguised business method patent. I didn't find anything in Google's brief that stressed the need to do away with such patents as well.

Only against abstract software patents (not concrete ones)

Wherever Google's brief relates to software patents, it does one of three things:

1. complain that there are generally too many of them (which would be an argument for higher quality standards, not necessarily for abolition)

2. refer to the implementation of business methods in software (as discussed in the previous section)

3. limit the scope of statements on software patents with the word "abstract"

The third item means: if a software patent application is too abstract, it should be rejected, but if it's somewhat concrete, it may be fine.

Google's brief doesn't suggest exactly where to draw the line between an abstract software patent and a concrete one. There's no doubt that a patent on a computer program implementing the Bilski idea would be "abstract". But the brief doesn't argue that software is abstract by definition and should, therefore, not be patent-eligible (as many opponents of software patents claim). I don't believe in the strength of the "all software is abstract" argument anyway. So I don't blame Google for not subscribing to it either. I'm just trying to figure out where Google stands, based on its Bilski brief.

The question of whether a patent is too "abstract" has to do with the breadth of the claims (it's the claims where the scope of the time-limited monopoly is defined) and it may also have to do with disclosure (the extent to which an invention is truly explained). Generally, the more "abstract" a patent is, the broader, and the broader, the more valuable. So it's obvious that applicants and their attorneys will try to push something as abstract as possible through the system. It's up to the patent examiners (or to the judges, post-grant) to insist on a narrower and more concrete application, and on the disclosure of an actual solution.

This is isn't software-specific at all. Half a century ago the SCOTUS already stressed that "a patent is not a hunting license", meaning that it's not a monopoly on the right to solve a problem, but a reward for an actual solution.

Conventional vs. non-conventional programming of a computer

Google's brief describes quite clearly on page 10 of the PDF file where Google would draw the line between patentable and unpatentable subject matter. I'll quote and explain:

Rather, "the clue" to patent-eligibility

The term "patent-eligibility" means whether something falls under patentable subject matter. If software is excluded from patentable subject matter somewhere, then it's "not patent-eligible", or more elegantly, "patent-ineligible". The term is meant to distinguish subject matter from other patentability criteria (novelty, nonobviousness etc.). However, when we talked about patent-eligibility in the EU debate over software patents, we always just said "patentability [of software]".

is whether a process results in physical transformation or reduction of an article to a different state
or thing.

That's the "transformation" part of the machine-or-transformation test. Software all by itself can't do that, so it's an non-issue for us. Google cites the Gottschalk vs. Benson case, which we don't have to worry about here.

Where such transformation does not occur, the Court has recognized processes to be patent-eligible only when the claim, considered as a whole, is necessarily tied to the non-conventional use of a machine.

Google talks about conventional vs. non-conventional use of a machine (such as a computer) at several points. One might think that programming a computer is by definition a conventional use because being programmed is what computers are for. Unfortunately, that's wrong.

I know this in detail because in the EU software "as such" isn't patentable subject matter, but a lot of software patents get granted, and the reasoning will always have to do with theories that are the equivalent of "non-conventional use of a machine". For an example, optimizing the use of the limited number of pixels of a screen (such as by a tab control), accelerating a database operation (such as by a better sorting algorithm), compressing data, encrypting data... all those kinds of achievements go beyond a conventional use of a machine under the logic of patent law.

Why would Google be fine with patents on a non-conventional use of a machine? Because pretty much everything on which Google seeks patents meets -- or is at least intended to meet -- that requirement, not from a programmer's common sense point of view but under patent law. For an example, Google's patented PageRank algorithm would not be considered a "conventional" use of a computer by a patent examiner or court because it's so useful for the purpose of estimating the relevance of web pages.

To resolve this case — and to provide needed clarity regarding the scope of patentable subject matter — this Court need only reaffirm these long-established precepts.

There you have it: Google called on the SCOTUS to uphold a set of criteria under which the kinds of patents Google obtains are available. Let's face it: the kinds of patents over which Oracle sues Google now also fall in that "non-conventional use of a computer" category. Google is getting a taste of its own medicine.

Adaptability of patent law to future innovation

At the top of page 11 of the PDF file, a long sentence relates to "technological advancements" and supports the idea that new technologies should be patentable in principle. Google's brief just argues that the Bilski patent application, which isn't as technological as Google's PageRank patent, is a kind of subject matter that has "existed since the time of the first Patent Act." That law was passed in 1790. Of course, businesses and markets existed before, so the Bilski idea could, in theory, have come up in one shape or another more than 200 years earlier.

In terms of where Google stands, it's just important to realize that this kind of reasoning isn't an anti-software-patent position at all. Instead, it is consistent with the idea of an "expansive" patent system that covers ever more fields of technology with time.

An anti-software-patent theory in this context would argue that even though US patent law is meant to adapt to new technologies, patent law is only a means to an end, and for reasons A, B, C and D, software patents run counter to the lawmakers' original intent (including that one might even argue they're unconstitutional).

It would undoubtedly be a huge challenge to win that kind of an argument, but it would be theoretically possible because very few legal principles are absolute: in most cases, different principles and values have to be weighed off against each other. In this case, the idea of the patent system expanding is one principle and value, and one could bring others into play to argue against the compatibility of software patents with existing patent law and, possibly, the Constitution. I just want to highlight that Google doesn't do that.

References to patent-critical literature

In all fairness I have to say that Google does cite some very patent-critical authors, such as James Bessen and Michael Meurer. I know the former (we were sitting next to each other on a conference panel years ago and agreed on a lot of things). Google also recalls that in the early 1990s virtually all software companies opposed the patentability of software (ironically, that would also include Oracle). Quite accurately, Google points out that innovation in software occurred anyway and, at the time, didn't require patent protection.

Google deserves credit for having drawn the attention of the SCOTUS justices to such theories and eye-opening writings. While this wasn't the only amicus brief to do so, the combination of Google with several of the giants of the financial services industry certainly did lend a kind of credibility to those critical voices that, by contrast, a notorious communist without any track record in business, authoring a submission on behalf of non-commercial entities, never brings to the table.

Still, Google stopped far short of advocating the abolition of software patents. One may prefer to crack one nut at a time and do away with business method patents first, then deal with other software patents.

However, if you look at Google's unequivocal support of non-abstract patents on a "non-conventional" use of a computer and its failure to argue against an expansive patent system, there's just no way a person knowledgeable in the field of substantive patent law could say that Google's brief was an anti-software-patent submission. It was at best neutral with respect to the kinds of patents Google itself files for, and I think it's fair to say that on the bottom line -- especially in the most crucial context, the legal tests for patent-eligibility -- was pretty much pro-software-patent.

Also, it must be considered that Google has never spoken out against the patentability of software as a whole on any other occasion either. I'll comment on that some other time.

I don't support patent aggression, but perhaps Google has to learn about patents the Ellison way.

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The silver lining in the Bilski decision isn't where most people believe

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn't draw any kind of line that would affect patents on software technology.

I commented on it within about an hour of its publication, concluding that the decision didn't invalidate even one software patent (the Bilski application itself wasn't a software patent application) and that only a decision to grant a patent on the Bilski application could have been any less restrictive. On the following day I listed the top ten losers.

Meanwhile discussion has continued and I've read a number of other opinions. Some of those were very realistic, such as Steven Vaughan-Nichols's analysis. Others took a more optimistic perspective and argued that the narrow scope of the ruling left the door open to more restrictive decisions in the future.

As the saying goes, every cloud has a silver lining. So where is it in the Supreme Court's Bilski opinion? There is one, but it's not where others seem to think it is. I'll start with where I believe many others are on the wrong track.

The "abstract idea" approach is a losing strategy

The conclusion from the Bilski ruling that patents on software technologies might one day be invalidated on the basis of being abstract ideas -- which is how the non-software Bilski application got rejected by the SCOTUS -- is

• a gross misinterpretation of the ruling, blatantly ignoring the court's unambiguous endorsement of patents on software technologies,


• an ideological argument that bears no legal or political weight with a majority of reasonable decision-makers,


• and, therefore, destined to remain unproductive at best and counterproductive at worst.

I know that some people who subscribe to that ideology won't like to read what I just wrote. But I'm not writing this for the ones who'd rather lose for the sake of an ideology. I'm writing this for those who understand that one can very well adhere to an ideology and simultaneously recognize that it takes something other than ideology to win.

Ideological blindness is the number one reason to which I attribute the fact that software patent abolitionism hasn't made any real headway (other than some defensive success).

There are many different angles from which one can come to the conclusion that software should be a largely or entirely patent-free field. Often when I talk to people who have that belief, it turns out that each person believes his reasoning for why software patents are undesirable is the truth and the winning argument. There are activists who think like it; there are also executives of smaller companies whose narrow perspective prevents them from recognizing that politics bears some -- but only limited -- resemblance with marketing.

Let's better face this fact: there isn't a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you'll have to do it indirectly. The direct approach has been tried by many people for many years -- to no avail (except, as I mentioned before, in a defensive situation).

The Bilski case was likened to two past cases and deemed different from a third past case

A lot of FOSS advocates basically argue that since the SCOTUS didn't explicitly say that software must be patentable, there's always a chance to go back with another case. That's just wrong. It's a typical exhortation to hold out (or, more precisely, to cling to a flawed strategy).

Don't let others fool you just because they don't want to adjust to reality. Here's a non-legalese explanation of what the SCOTUS really said.

The SCOTUS clearly stated that it did not want to issue a wide-ranging ruling with unintended consequences on other areas of patentable subject matter than the Bilski type of non-software business methods. And the SCOTUS determined that it wasn't really forced to overshoot: there already were precedents for similar concepts that were found unpatentable on the grounds of representing "abstract ideas."

The dreamers who think that software patents could be abolished on that same basis base their hopes on the fact that the SCOTUS didn't specify a set of rules that would define what an unpatentable "abstract idea" is. Experts would say: the court didn't establish a legal test (or a set of legal tests) that can be used to make that determination.

But the SCOTUS gave a couple of examples, and in the usual case-law style, those are cases put before it in the past. The court found that -- without even attempting to put it onto an objective basis -- the Bilski application was of a very similar nature as the ideas held unpatentable in two past cases (Benson and Flook). The court furthermore determined that the Bilski application didn't have enough in common with the patent considered valid in the Diehr case.

Without digressing into the details of those cases, let me just say that Benson and Flook related to general ideas without a very specific application and implementation. In my opinion, the Diehr patent shouldn't have been granted either, but there's no denying the fact that it was much more specifically tied to a technical purpose than Benson and Flook -- and than Bilski, of course.

There was a lot of disappointment among patent abolitionists that the SCOTUS didn't seize the opportunitay presented by the Bilski case to do some more specific line-drawing. While no one wanted to insult the court directly, the criticism suggested a lack of courage. I don't think that's fair. I believe the SCOTUS was right to find that the Bilski case per se presented nothing that hadn't been answered by it before. It was more of the same, and that's why it was the waste of time and money that the Software Freedom Law Center said it became. The case just wasn't suitable to what some people -- such as the SFLC -- would have liked to achieve. So don't blame the court.

The SCOTUS didn't draw a clear line but gave plenty of hints

Obviously a ruling based exclusively on similarities to past cases (without elaborating on inhowfar there were common elements) is less clear than a set of rules. The court almost implied that "if something is an abstract idea, we'll see it anyway." In the meantime, people should just look at the examples and draw inferences from those.

But the SCOTUS made some clear statements in its reasoning as far as software patents are concerned. Note that in the following I'm referring to some passages of the reasoning that were written by Justice Kennedy, who also presented the majority opinion, but those particular passages were not supported by Justice Scalia.

On page 9 of the decision, a more restrictive approach was rejected because it "would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." While that is based on a reference to position papers (amicus briefs) submitted by pro-software-patent organizations, the way the SCOTUS refers to those concerns leaves no doubt that the justices who supported the passage agreed that the Bilski decision shouldn't cause collateral damage in those areas.

Now look at that list again: if even "data compression" should be patentable in principle, there's just no way that software would be considered too abstract an idea. Data compression is the kind of software patent that is closest to pure mathematics. One may argue -- and I personally believe -- that it is essentially pure mathematics and the argument of proponents of patentability that it's "applied mathematics" doesn't convince me at all. I can see "applied mathematics" in play if a car brake is computer-controlled to maximize its efficiency. I can't dismiss the idea that computer graphics can involve "applied mathematics" (I may not want patents on graphics algorithms for other reasons). But with "data compression" I just consider it incredible that some people would (and actually do) claim that those are "applied" as opposed to pure mathematics.

So if there's such a widespread belief that data compression should remain patentable in the Information Age (and that's what it does unless one wants to just interpret the ruling in completely unreasonable ways), then this suggests to me that the entirety of patents on software technologies is safely outside of whatever the SCOTUS would consider an "abstract idea."

The SCOTUS makes it very clear that as new technologies evolve, the patent system was intended (by the Founding Fathers) to expand accordingly, unless there's legislative intervention to restrict it. In this regard, a majority of the court also referred to "technologies for conducting a business more efficiently" (which I mentioned in connection with what Bilski means for Salesforce.com).

That's just one of several examples -- but in my opinion the best one -- of where the SCOTUS makes it clear that at least some business methods must be patentable.

So if even software-implemented business methods are patentable, there's just no way that future SCOTUS rulings would hold typical software patents to be "abstract ideas" and therefore unpatentable.

Ideologues will say that software is a product of authorship rather than of engineering. I understand some of the reasoning and I support it, but many critics of software patents are just unrealistic in terms of how they make that point. Claiming that software development is closer to composing music than to electrical engineering is crazy. I've been in the software industry for 25 years now and I've always referred to software as "technology" and to professional programmers as "software engineers", even though I can also see what programming has in common with writing. Having authored twelve computer books, I believe I can -- and I do -- appreciate that.

So programming has common elements with both engineering and authoring: that doesn't mean I can deny the engineering part of it just because I don't want to deal with patents in my field. I can have other reasons, but that one isn't a useful argument.

The idea that every software patent is just an abstract idea is an abstract idea in and of itself. And it won't get us nowhere.

The actual silver lining: the SCOTUS' remark on striking the balance

Radicals are always more receptive to fundamentalism than to an argument based on striking a reasonable balance. But the latter is what works best to convince rational decision-makers.

Near the top of page 10, the Bilski decision contains a wonderful passage that is infinitely more helpful with a view to the future than the whole "abstract idea" thing:

This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge instriking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.

This passage is another reason for which I think a lot of critics of the decision are biased. What I just quoted shows that the justices supporting that passage understood very well that there may be a problem with software patents. However, a majority of the SCOTUS didn't consider the Bilski case the right occasion on which to address it, and it may not even regard any future case as an opportunity to determine "where that balance ought to be struck."

The quoted passage basically says: In the past there was a much smaller number of people who came up with potentially patentable ideas as part of their work. There were a few scientists in laboratories (not literally, but that's roughly the idea). These days there are tens or hundreds of millions of people who have a computer at home or at work and know how to program it, and maybe the traditional approach taken under patent law doesn't work well in such a situation and results in too many patents and -- a highly important aspect -- too many incidents of inadvertent infringement through independent creation.

While that doesn't sum up all of the reasons for which I dislike software patents, it addresses the core part of it. I mentioned in other contexts that my fundamental problem with software patents is the risk of inadvertent infringement. With copyright, that risk exists in a theoretical form but not in a practical one. With patents, it's a serious issue, especially in the field of software.

I believe that the oppponents of software patents should focus on that part of the Bilski opinion and try to build a case on that basis. Maybe there shouldn't be just another legal case because the SCOTUS also stated on several occasions that the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed." But at the very least the quoted passage from the decision gives some guidance in terms of how the case should be presented to lawmakers.

I know that many in this movement won't want to go down that avenue for the fear that the outcome would be some patent quality initiative as opposed to abolition. And if such a patent quality initiative didn't live up to expectations, it wouldn't change anything. I understand. I share the concern. But I don't see any other silver lining in the Bilski decision (as far as the majority position is concerned). The argument that the number of innovators is huge and that too many patents result in too much inadvertent infringement is one that non-programmers can understand. Unlike the "abstract idea" that won't ever have any material impact.

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Bilski decision a major disappointment: doesn't invalidate even one software patent

The Supreme Court of the United States (SCOTUS) has finally handed down its opinion in re Bilski, a business method patent case. The patent application in question relates to a method for managing certain risks related to price changes in the energy market.

Like many other critics of the patentability of software, I hoped that the Supreme Court would not only uphold the decision of the previous instance (the US Court of Appeals for the Federal Circuit), which had declared the claimed "invention" ineligible for patentability: that was widely expected. This case would also have been a splendid opportunity for the Supreme Court to draw a line and establish a reasonably restrictive set of rules that would either do away with many business method patents or, ideally, go even further and up the ante for software patent applications.

Unfortunately, the Supreme Court delivered an opinion that doesn't help the cause of partial or complete abolition of software patents at all. Within the range of possible ways in which the Supreme Court could justify its decision to affirm the rejection of the relevant patent application, the court's majority position is about the most liberal reasoning that it could have been. Only a decision to grant a patent on the Bilski application could have been any less restrictive.

Simply put, the Supreme Court's decision does not do away with even one software patent that already exists, nor does it raise the bar for the future.

The Supreme Court decided that the business method in question wasn't patentable because it was an abstract idea but simultaneously stressed that business methods can indeed be patentable. The court cited a long-standing principle in US patent law according to which "ingenuity should receive a liberal encouragement". In case of doubt, the scope of patentable subject matter should always be broad rather than narrow. In today's technology landscape, that approach means software patents without any meaningful limitations. Plain and simple.

Only new legislation could restrict the scope of patentable subject matter beyond the Supreme Court's permissive stance. The ruling makes reference to an earlier decision, according to which the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed."

But restrictive legislation is a long shot to say the least. In the Bilski case, major corporations particularly from the IT industry issued warnings against any limitations of the scope of patentable subject matter. IBM even made the absurd claim that software patents liberated programmers and made open source development so very popular. Against that kind of support from industry, it is hard to see how the opponents of software patents could successfully lobby the United States Congress.

The Supreme Court's decision does leave it to the appeals court to develop new legal tests that could make certain claimed inventions patent-ineligible. However, the Supreme Court opposes the notion that the traditional machine-or-transformation test could serve as the sole test of patent-eligibility of processes. Since the Supreme Court also made it clear that even business methods should be patentable in principle, it's hard to imagine that the appeals court would now develop any seriously restrictive case law.

Like I wrote further above, the Bilski case would have been an opportunity to affect at least in part the patentability of software in the United States. The decision announced today makes it clear that a majority of the Supreme Court wanted to give the abolition of even only a small percentage of all software patents the widest berth possible.

The petitioners in the Bilski case lost because their application won't result in the grant of a patent. But the free software and open source movements lost something even more important: a rare chance to achieve at least a partial victory.

This US decision is even more disappointing when taking into account the global trend. New Zealand's parliament was temporarily inclined to abolish software patents, but a trend reversal was brought about by IT industry giants lobbying the legislature. The German equivalent of the Bilski case, a decision on an XML/HTML document generator, also ended in a resounding victory for the pro-patent camp.

The anti-software-patent movement has clearly had a bad year, and it hasn't made any noticeable progress in a number of years. I know a lot of people in this community don't like the notion. Nor do I. But we must face the facts.

The position that software patents should be abolished isn't nearly as popular among judges and politicians as it is in the free and open source software community.

In recognition of that fact, it's time to think of new approaches. Let us be open-minded about strategies that could have a certain positive effect under the circumstances, such as the upcoming Defensive Patent License (DPL).

[Update] I have put together a list of the top ten losers of the Bilski case (besides the petitioners Bilski & Warsaw) [/Update]

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IBM's Bilski brief spits in the face of the free software and open source movements

Later today, the Supreme Court of the United States (SCOTUS) will most probably publish its long-awaited opinion in re Bilski, a decision that appears to relate to a business method patent but could also become the first landmark SCOTUS ruling on software patents in a long time.

A fellow activist recently pointed me to an outrageous document: In an effort to dissuade the SCOTUS from imposing restrictions on software patentability, IBM tells the court the blatant lie that software patents have made open source popular.

Even worse, IBM describes software patents as a liberating factor, making mockery of the whole software freedom movement founded and spearheaded by Richard Stallman. RMS has always opposed software patents. He travels the world to fight them (a speech he gave at a demonstration in Munich last year is on YouTube: part 1, part 2). But IBM shamelessly claims that it took software patents to liberate software developers and make Stallman's idea fly.

In a footnote on page 25 of its amicus curiae brief (submission to the court) in the Bilski case, IBM makes the following claim that is not only the exact opposite of the truth but also shows the ruthless and cynical enemy of open source that IBM is in the patent context:

"Patent protection has promoted the free sharing of source code on a patentee’s terms---which has fueled the explosive growth of open source software development."

I read this again and again, and I find it nothing short of appalling. This is absolutely in contradiction to the GPL, the Apache Software License and the spirit and the letter of other FOSS licenses.

The worst lie ever in the software patent debate

The absurd assertion that patents -- the most fundamental threat to software freedom -- promote "the free sharing of source code" and therefore open-source development is the most preposterous argument in favor of software patents that I've ever heard. And I've heard many, including many stupid ones, in countless debates in which I participated over the years. But this one is in a class of its own, in a negative sense.

Let me speak from my experience as a participant in so many public debates on software patents as well as private conversations with politicians and their advisers.

Those who advocate software patents will say a lot of things that are factually wrong just to get their way. During the legislative process concerning the EU software patent directive, the strategy of the pro-patent camp was to flatly deny that the law was about software patents. They claimed they just needed the law to make computer-controlled devices such as automatic transmission systems or new generations of washing machines work. The NoSoftwarePatents campaign, which I founded and managed until 2005, called this "the mother of all lies."

Another lie was to claim that the proposal would have restricted the European Patent Office in its practice of granting software patents. OpenForum Europe, a lobby organization whose biggest and most influential member is IBM, was among those spreading that message, falsely claiming to represent the open source community.

Many debates never got to the point of whether or not software should be patentable because it took so long to dismantle those lies about the legal meaning of the proposal that there usually wasn't any time left for the fundamental question of what's best to incentivize innovation.

The lesser evil: denying negative impact

When we had the chance to discuss the heart of the issue, we also saw many claims that FOSS could prosper under a software patent regime. Those claims were meant to alleviate concerns of FOSS-friendly politicians, almost all of whom opposed software patents. As part of that political strategy, IBM made its original "open source patent pledge" in January 2005. They wanted to lull politicians as well as the FOSS community into a false sense of security. This was in their interest with a view to the European process, so the timing wasn't a coincidence. Of course, their interests concerning the open source community go beyond Europe.

This ZDNet article, published on the day of the announcement of the pledge, quotes me as calling IBM's 500-patent pledge an act of hypocrisy because they were actively lobbying for software patents in Europe. I was fighting their lawyers and lobbyists all the time, and I told the ZDNet reporter who then called up politicians to double-check.

Mark MacGann, then the chief executive and lobbyist of a big IT industry association (with IBM among its members), is quoted in that article with his spin, calling IBM's pledge "a strong example of the compatibility of computer-implemented invention (CII) patents with the OSS development model." I haven't talked to him in several years, but next time I see him, I'll ask him what he thinks of IBM's betrayal of the pledge.

Still, it's the lesser evil if someone just denies that there's a negative impact and grossly overstates the benefit of pledges. What IBM does in its Bilski brief is much worse: IBM attributes the rise of free and open source software to the liberating effect of software patents, which is not just wrong but turns the facts upside down.

Right or wrong, it serves their purposes. I can only hope that the judges figured it out.

IBM probably tells the same story around the globe

IBM recently also lobbied for software patents in New Zealand, where the abolition of software patents was a political possibility but it seems that a trend reversal has occurred, with IBM and Microsoft advocating software patents. I don't know what exactly they said. New Zealand is antipodal to where I live, and I don't have any contacts there. Presumably, IBM will have made pretty much the same points as in its Bilski brief.

I don't deny companies their right to push for software patents, just like I have the right to oppose them. That's democracy, but there's a right way and a wrong way to make the case. Mockery of freedom is simply unacceptable.

I don't know how IBM discusses software freedom internally. I guess it's similar to the attitude of CNN reporter Rick Sanchez:

"What, what the hell does that mean, freedom? The biggest tent is freedom? Freedom?! I mean you gotta do better than that."

Whatever freedom may mean, Messrs. Sanchez and Sutor, software patents aren't part of it.

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