ESP Wiki is looking for moderators and active contributors!

Drafting the next US amicus brief

Red alert.png This entry is for brainstorming.
These are ideas for a specific purpose. This is not an informational entry and will never turn into one.

This page is for taking arguments that we've already somewhat developed, and making a text that is sufficiently clear and concise to fit in an explanatory letter.

Explaining the "as a whole" error

The ESP 2009 brief, section I part B and part C argue that the CAFC has misread Diamond v. Diehr. Here's an attempt to explain the problem in other words:

If the patent is "software on a (standard) computer", then the computer should be separated out because it's non-innovative and only contributes "insignificant post-solution activity". Then you're left with software, and there's the possibility that it will be found to be a non-patentable abstract idea. The problem is that the CAFC ignored the "insignificant post-solution activity" and so applied "as a whole" to indescrimiately, which means that the computer won't be separated out. The inclusion of something you can drop on your foot (a computer), makes it almost impossible to reject the claim as being just an abstract idea.

This seems unreasonable. Antilock brakes on a car are controlled by software. Would you argue that the car "should be separated out because it's non-innovative" and that antilock brakes were unpatentable on that basis? The computer is the context in which the software operates.
The reason a computer can be removed from the equation is that it is non-innovative (if the software idea works on any computer) and it only adds "insignificant post-solution activity" - you have to fulfil the two criteria together. The latter term is one the supreme court has used a few times. The post-solution activity in slowing down a car is not insignificant. Moving bits around a computer is. Your next question will probably be "What makes you say the court will say that?" I'll be back later to answer that. This example is also discussed here: Anti-lock braking example

Publishing information becomes dangerous

The basics of this argument still need to be developed: Publishing information is made dangerous.

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.)

It's reasonably clear, but it's a completely speculative argument. "Emerging model"? That's an opinion, and one that may well not be shared by the judge. You'd have to demonstrate that there actually is an emerging model worth talking about and that supporting it (presumably to the detriment of the "Emerged-from model) does more good than harm. Good luck with that.

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.

If they were better-articulated and better supported, that would help. This web site is not a fit basis for something like that yet, as the "Apple" page demonstrated.

Innovation without patents: Apple?

The 2009 brief used Microsoft Windows 95 and GNU/Linux as two examples of large software systems developed without patents.[1] To a certain degree, Apple could be added to that list. Without having looked into their patent habits, we can see that they spent many years developing the base of their system (kernel, libraries, system tools) only to throw it all away and use the equivalent components from FreeBSD. Some research would be needed to find evidence to support this, but it's likely that they patented their base system during development, so it's noteworthy that they discarded their patent-fueled software for a software that was fueled not by patents but by copyright alone.

"Without having looked into their patent habits"? This reads to me as something like, "At a biased guess..." By the way, if you don't think Apple holds plenty of patents on their improvements to "equivalent components from FreeBSD", I'd strongly encourage you to think again.
But, from year X to year Y, Apple's development of system components and FreeBSD's development of same were happening in parallel. The former with patents, the latter without. In year Y, Apple compared the two and decided the latter so much better than their own that switching was a good idea even though Apple had expertise the components they were throwing out. That's a significant endorsement of a patent-free development model, no?
Since making the decision to switch, Apple might well have started to patent their work on the FreeBSD stuff (and if they have, we should document it here, particularly if it's a danger to *BSD, but that's another discussion), but that's not relevant for the point in the preceding paragraph since I'm talking about Apple's review in year Y of what happened before Apple became a developer of FreeBSD tools.
(There's really no attempt to demonise Apple. Whenever I have an idea, or whenever I see something mentioned in various forums, I make a note of it and add to it over time until it's proven or disproven.)

English translation of Netzwettbewerb durch Regulierung

It might be useful to have an English translation of the German Network Competition Through Regulation report.