Apple among 36 companies targeted in e-mail spam patent suit - "A new lawsuit filed this week has accused Apple, Google and numerous others of patent infringement, alleging that the companies are improperly profiting from spam filtering technology created by InNova. [...] The suit deals with U.S. Patent No. 6,018,761, related to technology that is used to differentiate between regular e-mail messages and unwanted advertising spam."

Patently-O: Patenting by Entrepreneurs: The Berkeley Patent Survey - "Our third major finding concerns startup executives' perceptions of the effectiveness of patents and other methods of providing competitive advantage. Interestingly, responses vary widely (see Fig. 2 below). Biotechnology companies rate patents as the most effective means of capturing competitive advantage, more effective than first-mover advantage (though the differences are not statistically significant), trade secrecy, reverse engineering, copyright, and other means. Software companies, on the other hand, rank patenting dead last in providing competitive advantage."

Packt Publishing Offers New Discounts on Multiple Purchases - "These discounts apply to orders of any books, and can be redeemed by ordering multiple copies of the same book, or through a number of different titles. The discounts are automatically applied in your cart, which means that obtaining bulk-buy discounts is a simple process."

The Post-Bilski landscape: Why some tried, but failed, to ban "business method" patents - "But while Justice Anthony Kennedy’s controlling opinion may not do much to change the status quo when it comes to the patent system, the more interesting Bilski story is one of an important "almost"—an "almost" that by all indications was hard-fought. Indeed, for some folks—including those who hoped the Court would use the case to limit what they see as a plague of spurious patent litigation—this has to be a particularly painful “almost.” While the justices were united in denying a patent to the Rand Warsaw and Bernard Bilski’s invention, they split 5-4 on the most important issue: whether it is ever appropriate to grant patents to a method of doing business."

KluwerLawBlog: German Court (BGH) strengthens significance of EPO’s and foreign courts’ decisions - "The German Federal Supreme Court (Bundesgerichtshof) has recently made clear that every court has to take into account preceding decisions of the European Patent Office and of courts of other contracting states to the European Patent Convention if these decisions essentially concern the same questions. Although there is no principle of precedence in Germany – neither in respect of German nor of foreign decisions –, the recent ruling of the Federal Supreme Court (...) requires more than just regarding other decisions with favour. Every court has the obligation to deal with the arguments brought forward in other – German, EPO or foreign – decisions."

FeldThoughts: Why Bilski Really Means That Software Companies should leave the US - "What Bilski means for software is that the advantages of starting software businesses abroad have become even more clear. The tax situation and cost of living in, say, South America, is much better than in the U.S. currently. Now that startups have to live in fear of the uncertainty of the U.S. patent system, when they could be wiped off the face of the Earth by legal fees and customer loss in the span of a few months by the mere filing of a patent suit, and with an entire government that seems to have no sympathy toward their small businesses, why start a software company in the United States?"

SCOTUSblog: Business method patents nearly bite the dust - "Goldstein argues that "Justice Stevens was originally going to author the Court’s opinion in Bilski but subsequently lost his majority to Justice Kennedy." In terms of consequences, he states: "On the broadest level of whether the Court might revisit Bilski in a later case when Justice Scalia has the opportunity to consider the matter further, I think the answer is clearly no. In statutory cases like this one [...] the Justices try to adhere to stare decisis. The decision in Bilski settles the question that business methods are patentable subject matter until Congress decides otherwise"."//"

Bradley Kuhn: Post-Bilski Steps for Anti-Software-Patent Advocates - "[...] As near as I can tell from what I've learned, the entire “Bilski thing” appears to be a no-op. In short, as before, the Patent Office sometimes can and will deny applications that it determines are only abstract ideas, and the Supreme Court has now confirmed that the Patent Office can reject such an application if the Patent Office "knows an abstract idea when it sees it". Nothing has changed regarding most patents that are granted every day, including those that read on software. Those of us that oppose software patents continue to believe that software algorithms are indeed merely abstract ideas and pure mathematics and shouldn't be patentable subject matter. The governmental powers still seems to disagree with us [...] Looking forward, my largest concern [...] is that the “patent reform” crowd, who claim to be the allies of the anti-software-patent folks, will use this decision to declare that "the system works". [...]"

Pharmacogenomics Reporter: SCOTUS Tasks Lower Court with Determining Criteria for Dx Patentability - "A day after reaching a decision in the business methods patent case Bilski v. Kappos, the Supreme Court this week remanded the diagnostic patent case Prometheus Laboratories v. Mayo Collaborative Services et al., to the Federal Circuit Court of Appeals with an order to revisit the case in light of Bilski. The lower court must now reconsider Prometheus with the understanding that the so-called "machine-or-transformation test" cannot be the sole determinant for patentability. While this presents an opportunity for the Federal Circuit to come up with new methods for determining patentability with regard to advanced technologies not grounded in a physical platform, nothing in the Supreme Court's recent actions sheds light on how the courts might deal with method patents related to genetic testing."

Timothy B. Lee: Justice Scalia’s Indecision a Victory for the Patent Bar - "Whenever Justice Kennedy waxes poetic about the Information Age, Justice Scalia gets off the bus. The result is an exceptionally narrow holding that doesn’t give much comfort to partisans on either side."

Techdirt: Reading The Bilski Tea Leaves For What The Supreme Court Thinks Of Software Patents - "[...] as more people have had more time to look at and sift through the rulings in greater detail, some are realizing there may actually be a light at the end of the tunnel for those who dislike software patents. Contrary to the claims of the IEEE, the ruling did not, in fact, come out and say that software patents are legit. It sidestepped that question -- in part due to Justice Scalia's decision to opt-out of two sections of Kennedy's majority opinion."

BIO Commends Supreme Court for Expansive View of Patentability in Bilski Decision - ""In our amicus brief, BIO urged the Supreme Court to overturn the lower court's rigid new test for determining whether a method or process is eligible for patenting. We are pleased that the Justices crafted a narrow opinion that does just that. The Court was clearly conscious of the potential negative and unforeseeable consequences of a broad and sweeping decision," stated BIO President and CEO Jim Greenwood."

EcommerceTimes: Bilski Brouhaha: Supreme Court Keeps Stevens at Bay - "Although all of the justices agreed that the invention at issue was unpatentable, the opinion is fractionated, with justices joining various pieces of the opinion, and Justices Stevens and Breyer writing concurrences to elaborate their views hostile to patenting in the information sector. Justice Kennedy's plurality decision held that the Federal Circuit's Machine-or-Transformation test could not be an exclusive test under section 101, although subsequent tests could be propounded consistent with the Court's precedent."

New America Foundation: Video Prison: Why Patents Might Threaten Free Online Video - "If online videos were subject to patent licensing fees, users could be charged per-view to capture those fees. [...] video licensing could reduce the democratic nature of free and open Internet content to monetizable media. The funny cat videos would be gone forever [...], but so too would the movement-inspiring Nedas of the future remain unknown. [...] As the Web incorporates multimedia, some participants want to control -- and charge for -- its video standards. [...] Some participants in the online video discussion claim that common video codecs [...] cannot be implemented without infringing their patents. One codec under popular consideration for use in HTML5 is H.264 (a.k.a. MPEG-4 AVC), already used for an estimated 66% of all online video content, [...]. Yet H.264 is also claimed to be subject to a pool of patents controlled by MPEG-LA, a limited liability corporation that describes itself as the "world’s leading packager of patent pools for standards""

The Supreme Court Keeps Business-Method Patents Alive - "The Supreme Court, as expected, dealt the final blow to Pittsburgh inventor Rand Warsaw's dream of patenting a method for hedging energy costs against changes in the weather. In doing so, however, the court didn't upset the foundations of the multibillion-dollar world of "business method patents," which are based less on a particular machine than a process for achieving some practical end."

CNet: Supreme Court sidesteps software patent issue - "Anyone hoping that the U.S. Supreme Court would limit the ability to patent software will be disappointed by Monday's ruling. The court ruled against patent applicants Bernard Bilski and Rand Warsaw (PDF), who in 1997 had tried to patent a process for hedging investments, a process of countering one investment risk with another. But the majority of justices stopped far short of a broader ruling that would have curbed so-called business method patents -- and perhaps software patents as well."

Bnet: Supreme Court Says No to Bilski Decision, Yes to Software Patents - "The bottom line: contrary to some reports, experts say that the 5-4 ruling offers little to no change in business method and software patents."

IAMblog: A bad day for anti-software patent groups, so what happens next? - "My guess is that Bilski ends the debate about the limits of patentability through the US courts for now; while in Europe it is difficult to see there being much court-led change either [...]. If this is right, it probably means that if there is to be a challenge to existing regimes it will have to come through legislation. And to my mind, that probably means growing calls for reform from the anti-software patent side. As a result, I would expect to see an increase in activity on both sides of the Atlantic from anti-groups as they seek to create momentum behind calls for legislation to limit patentability. They are very good at this and in the past the pro-patent side has been very bad at responding. I wonder if it will be different this time."

Tapped: The Supreme Court's Anti-Software Patent Decision. - "So, that makes (a) nine justices who ruled against vague business-method patent applications and challenged a strain of judicial certainty about the proper way of handling these patents and (b) five justices who challenged the operational notion that new ways of doing stuff are themselves deserving of patents from the United States government. Seems reasonable to read those two together as an encouraging result for people who’d like to see the end of software patents."

PCWorld: Supreme Court Decision Raises Software Patent Questions - "Recent decision doesn't change much, except that the Court’s decision was at odds with 150 years of patent law, says a legal expert."

Considering that

1. Software patents are too slow. Examination takes 4 years or more. Patents limit competition for up to 20 years. The software life cycle and amortization of investments are much shorter.
2. Software patents ruin investment. A typical software can violate hundreds of patents. Established players shoot down emerging competitors with a single patent and delay creative destruction of their markets. Entrepreneurs refrain from the risk of entering a 'mined' market. Legal ambushes deter investment in the next generation by the market leaders of tomorrow.
3. Software patents are overly broad rights, as opposed to precise rights such as software copyright. Broad, intricate and clumsy rights are damaging for the market while at the same time more valuable for their holders. 'Inventors' may deliberately phrase their applications very broadly and negotiate with the patent office over breadth of the grant.
4. Software patents deprive authors of the fruits of their work. Patent regimes dilute your ownership over copyrighted works because they overlap with the realm of copyright. Software patenting closes an alleged copyright 'protection gap', which was preserved by the legislator for reasons that advise against patenting, too.
5. Software patents are not economically justified. Insufficient economic evidence supports an application of the patent system on software. On the contrary, most studies hint that software patent regimes restrain innovation.
6. Software patents reward 'hot air'. Ideas are not scarce but cheap. Their disclosure barely justifies to grant rights to prevent them happening. Developers who read software patents consider them an offence: they disclose nothing useful.
7. Software patents are difficult to research. Patent databases, software and patents are complex. Patent attorneys can do unreliable research for you. Only courts can decide if you infringe a patent. You take all risks and bills. Patent Offices admit it is impossible to find prior art in source or binary code.
8. Software patents are useless for defensive purposes. Your own patents are useless against 'patent trolls', since they do not have any product which could infringe a patent of yours. When your business bankrupts a troll will buy your 'defensive' patent and terrorise your competitors.
9. Software patents discriminate small players. They are forced to bow into cease-and-desist letters about questionable patents or settle out of court as litigation is too expensive and takes a long time. As a small player you can either pull or cut your software or take a license if available. You are excluded from fair cross-licensing deals, since you do not have enough patents to cross-license.
10. Software patents are like 'cold war' for large companies. Large companies view positively the potential to nuke competitors from the market. With cross-licensing deals they recreate a level playing field that resembles the situation without a patent system for members of the club. But weight in trolls, litigation costs, damages, royalties, product removal risks, and a shift of resources from the R&D (Research&Development) to the P&L (Patents&Litigation) department.
11. Software patents do not fit for service-oriented markets. The software market is about providing services. Patenting suits service markets badly. Patents were designed for the classic industrial sector.
12. Software patents are not written by (and for) developers. 'Inventors' can write patent applications without skills in software development and sue software developers who independently 'recreated' their 'inventions'.

We ask our parliaments and governments to do the following:

1. Pass legal clarifications to substantive patent law. Such clarifications comprise negative and positive tests for patent examiners to assess what is eligible to merit a patent. We made proposals and remain open to alternatives that contribute to the end of software patenting worldwide. Two major ones are:
   1. A claimed object that consists only of instructions for use of generic data processing hardware (universal computer), also called “program for computers” or “computer-implemented solution”, is not an invention in the sense of patent law, regardless of the form in which it is claimed.
   2. A claimed object can be an invention in the sense of patent law only if it contributes knowledge to the state of the art in a field of applied natural science.
2. Overcome a patent reform discussion trapped into "non-obviousness" The 'American disease' of patent law requires a return to real steering instruments. The patent community has been using that obviousness filter to distract reforms and to get industry backing for dismantling of more meaningful examination filters.
3. Apply sound economical justifications and impact assessments in a democratic legislative process.
4. Apply democratic reforms of patent institutions. Patent offices have to stay neutral and abstain from lobbying. They must let patent examiners contribute their first hand experiences. Persuasion for patenting based on the assumption that small enterprises just lack awareness puts preconceptions over the rationale of market choice.
5. Provide for non-infringement declarations which override enforcement of patents. Rather than you taking the risk to research patents, patent holders should declare upon you request if your product or standard infringes one of their patents. Such estoppal provides legal certainty and standard confidence.
6. Get patent professionals out of policy making. Increase the influence exercised by economists on the governance of innovation policy. The quality of professional judges cannot be exchanged for 'technical judges' without legal training and eligibility to a judicial office or administrative 'case law'.
7. Keep substantive patent law harmonisation away from Free Trade Agreements.
8. Start an open debate about the patent crisis aimed at finding solutions. Economists can easily explain to you why free rider effects make patent opposition suboptimal. Other institutional unbalances pressure patent examiners to grant permissively. Let's review the institutional incentives and start reform.

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