In each Supreme Court brief that SFLC has filed over the years we have included a little note on the first page declaring that the brief was made using only free software. This point was particularly important in our most recent brief, for a case named Alice Corporation v. CLS Bank, which was argued in front of the court last week. Our use of free software was particularly important this time because we argue in our brief that free software has been responsible for the major software innovations of the modern era. In partial support of that claim I want to show you our document creation process and tell you about the free software we use to take text from an email and turn it into a camera-ready Supreme Court brief, then a website, then an eBook.
Google recently disclosed a draft cross-license under which patents related to the VP8 video compression format—held by Google, MPEG-LA, and several other companies—would be licensed to the general public. SFLC reviewed these terms and considered some criticisms that have arisen in the free software community.
Several times in recent years, opponents of software patents have looked hopefully to Congress and the Supreme Court for a solution to the expensive problem of software patents, and several times we’ve been disappointed. The narrow Bilski v. Kappos ruling invalidated one business method patent but left the question of software patents to one side, and even arguably weakened a rule—the “machine-or-transformation” test—intended to limit the scope of patentability. The reforms of the America Invents Act were half-hearted; they provided additional opportunities to challenge patents at the USPTO, but did not fundamentally affect the rules for patenting software.
Despite these missed opportunities, there are signs of slower but consistent reform in the courts, and yesterday’s ruling in the Eastern District of Texas in Uniloc v. Rackspace is one of them. The Uniloc ruling is about as good as it gets for a defendant in a software patent case: the judge dismissed the case at an early stage on the grounds that the claim at issue described an unpatentable mathematical formula.
Software patents and data mining are the major ecological issues confronting technologists today. Startups’ prevailing business models have predictable consequences that pollute the environment for innovation and endanger users. Companies that elect these models, either by design or by default, no longer have the luxury of ignoring their inherent ethical problems. We have to start designing for sustainability. If we don’t, we’re selling out the future of software and the rights of actual human beings.
Twin Peaks Software, Inc., which makes proprietary data replication and cloud storage software, sued Red Hat and its subsidiary Gluster for patent infringement back in February. Last week, Red Hat filed a counterclaim in that litigation, alleging copyright infringement by Twin Peaks in misappropriating GPL’d software. Today SFLC begins an investigation of Twin Peaks’ products, to ascertain whether any of our clients’ rights are being infringed through the violation of FOSS licenses.
In the haze of confusion surrounding the Supreme Court’s recent decision in Bilski v. Kappos, the appeals board of the United States Patent and Trademark Office issued a ruling last week that takes a definitive stand against the worst kinds of patents that threaten software developers every day.
Last week, to the surprise of patent lawyers and the biotechnology industry, advocates for technological freedom won an enormous victory against socially harmful distortions of patent law. The Federal District Court for the Southern District of New York held invalid patents owned by Myriad Genetics on diagnostic testing for genetic susceptibility to the most common hereditary forms of breast and ovarian cancer. By “patenting” the right to determine whether the BRCA1 and BRCA2 genes are present in the relevant mutated form in a women’s genome, Myriad Genetics has been able to exclude all other laboratories from conducting the test. Patients and their insurers have paid much more, and women and their families have waited crucial weeks longer than necessary for information relevant to treatment and potentially affecting survival.