The US government files amicus briefs in important software patents court cases.
Who's important and how much changes per Administration
2009 Bilski brief
In the Bilski v. Kappos (2009, USA) case, the Obama administration's Bilski brief (submitted by the Department of Justice) supported an interpretation that would continue to grant some software patents:
No extant field of technology or industry—including software and diagnostic methods, the two fields addressed by numerous amici—is wholly excluded from patent protection under that approach;
The brief argued to reject the Bilski patent because it is a "[mode] of organizing purely human activity, wholly apart from any form of technology".
The brief proposed this scope for patentable subject matter:
The eligibility of a process for patent protection under Section 101 should be judged by a two-part inquiry. The first question is whether the claimed process, taken as a whole, concerns the operation of a particular machine or apparatus or effects a transformation of matter into a different state or thing. In considering this question, the caveat that a process claim must be considered “as a whole,” Diehr, 450 U.S. at 192, warrants particular emphasis. For instance, a step that involves a machine will not suffice to bring an otherwise ineligible process within the ambit of Section 101 if that step is merely insignificant extra-solution activity—i.e., activity that is not central to the purpose of the method, such as the step of downloading search results on a computer in the context of a method for evaluating and ranking search results. See id. at 191-192; Flook, 437 U.S. at 590. Likewise insufficient to bring a method within the ambit of the machine-or-transformation definition are mere field-of-use restrictions—for example, limiting a generic method of marketing to the field of marketing computers or software. Diehr, 450 U.S. at 191; Flook, 437 U.S. at 590.
Second, because laws of thermodynamics, mathematical formulas, abstract ideas, and other phenomena of nature are “part of the storehouse of knowledge of all men * * * free to all men and reserved exclusively to none,” Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948), every claimed process must be further examined to ensure that granting the patent would not in practical effect “wholly pre-empt” the public’s access to the “basic tools of scientific and technological work.” Benson, 409 U.S. at 72, 67. Even a process that otherwise satisfies the criteria for patent-eligibility (e.g., because it concerns the use of a machine) may pose that risk, as the computer-assisted method of calculation in Benson demonstrates. See id. at 72 (claimed method “in practical effect would be a patent on the algorithm itself ”). A second inquiry is therefore required to determine whether the claim preempts all applications of the fundamental principle, rather than simply claiming the use of the fundamental principle “in conjunction with all of the other steps in [the] claimed process.” Diehr, 450 U.S. at 187.
2009 statement on overseas patent enforcement
[...] That's true in China; it's true for everything from bootleg DVDs to very sophisticated software. And there's nothing wrong with other people using our technologies. We just want to make sure that it's licensed and you're getting paid.
Support for ACTA
Barack Obama, disappointingly, has voiced his support for the Anti-Counterfeiting Trade Agreement (ACTA) on March 11th 2010 saying: "we’re going to aggressively protect our intellectual property [...] That’s why USTR [US Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement."
This proposal makes it sometimes illegal, sometimes dangerous to participate or enjoy the work of community projects which is classed as commercial scale international organisations.
- Amicus Brief from the Obama administration (for the Bilski v. Kappos (2009, USA) case)
- Patently-o: Obama's statement on January 22, 2010
The Google-Stanton patent
- Slashdot: US Dir. of Citizen Participation Patents the News
- See brief, pdf page 46, numbered "36", http://www.patentlyo.com/08-964bsunitedstates.pdf
- See brief, pdf page 47, numbered "37", http://www.patentlyo.com/08-964bsunitedstates.pdf