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The Arguments For Patents for Business Methods and Software-Implemented Inventions - And Some Against

By Pamela Jones et al.

I asked if it would be possible for the law firm of Wolf, Greenfield & Sacks to write an article defending business methods and software patents for Groklaw, and they were nice enough to agree to do it. Steven J. Henry and Eric L. Amundsen, to be specific, were nice enough and brave enough to step up to the plate and explain why, in their view, based on their experience as IP attorneys, the sky will not fall no matter how Bilski is decided.

I know, and they know -- because I made it clear -- that most of us here are opposed to software patents and disagree with their position. But they came anyway, and I appreciate it. Thank you both. Please treat them as my guests at this party, with respectful attention, and then explain to them in return, please, all the reasons you do or do not agree. References are ideal for expanding and deepening the conversation.

It's particularly pertinent now to be having this discussion because the Supreme Court is going to be deciding the appeal of Bilski, and I thought it would be useful to consider a bit of the history of those kinds of patents and the cases that led to them being thought of as patentable subject matter. Groklaw can't file an amicus, but at least we can contribute to thinking about the issues. Think of it as tossing a note in a bottle into the ocean. You just never know who you might reach. When I go down the Patently O list of Bilski briefs now being filed with the Supreme Court, I don't see the pro-software/methods patents proponents even addressing the needs and concerns of the FOSS community.

I will simply point to the single most important reason FOSS developers and users of GNU/Linux operating systems are so opposed to software patents -- they violate and block a new development model, that of Open Source. That is the one argument I don't see being addressed. The Internet is built on Open Source. Every time you use Google or Amazon, you are using Open Source. So I believe the economy can be affected by Bilski in ways not everyone has thought through sufficiently. I'll put some further remarks after the article, so as not to skew your impressions on first reading by answering the article before you even read it. But after the double row of stars, I'll amplify. My goal is that both sides of this discussion have a deeper understanding of the other's point of view.

In addition to any comments that may be posted here in response, you will find a long thread of comments -- there are over 400 comments on that article alone as I write this introduction -- specifically on whether software is math and hence unpatentable subject matter here. If anyone wishes to re-post their best arguments here, that would probably be helpful, so as to have them all in one place.

So with that introduction, let's first let the two patent attorneys present *their* arguments for business methods patents and software patents.

Full post as published by Groklaw on September 26, 2009 (boomark / email).