David A. Wheeler's Blog

Fri, 09 May 2008

Bilski: Information is physical!?

The US Court of Appeals for the Federal Circuit in Washington, DC just heard arguments in the Bilski case, where the appellant (Bilski) is arguing that a completely mental process should get a patent. The fact that this was even entertained demonstrates why the patent system has truly descended into new levels of madness. At least the PTO rejected the application; the problem is that the PTO now allows business method patents and software patents. Once they allowed them, there’s no rational way to say “stop! That’s rediculous!” without being arbitrary.

Mr. David Hanson (Webb Law Firm) argued for the appellant (Bilski), and got peppered with questions. “Is a curve ball patentable?”, for example. At the end, he finally asked the court to think of “information as physical”; it is therefore tangible and can be transformed.

That is complete lunacy, and it clearly demonstrates why the patent office is in real trouble.

Information is not physical, it is fundamentally different, and that difference has been understood for centuries. If I give you my car, I no longer have that car. If I give you some information, I still have the information. That is a fundamental difference in information, and always has been. The fact that Bilski’s lawyer can’t understand this difference shows why our patent office is so messed up.

This fundamental difference between information and physical objects was well-understood by the U.S. founding fathers. Here’s what Thomas Jefferson said: “That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breath, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.” Thomas Jefferson was a founder, and an inventor. No, they didn’t have computers then, but computers merely automate the processing of information; the essential difference between information and physical/tangible objects was quite clear then.

Our laws need to distinguish between information and physical objects, because they have fundamentally different characteristics.

Basically, by failing to understand the differences, the PTO let in software patents and business method patents, which have been grossly harmful to the United States.

Even if you thought they were merely “neutral”, that’s not enough. There’s a famous English speech about the trade-offs of copyright law, whose principles also apply here: “It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” - Thomas Babbington Macaulay, speech to the House of Commons, February 5, 1841.

I believe that software patents need to be abolished, pronto. As I’ve discussed elsewhere, software patents harm software innovation, not help it.

But here in the Bilski case we see why some some people have managed to sneak software patents into the patent process. In short, too many people do not understand the fundamental differences between information and physical objects. People whose thinking is that fuzzy are easily duped. Though clearly many people aren’t as confused as Bilski’s lawyer, I think too many people in the patent process have become so confused about the difference between physical objects and information that they don’t understand why software patents are a serious problem. Patents should only apply to processes that directly change physical objects, and their scope should only cover the specifics of those changes. I add that latter part because yes, changing the number on a display does change something physical, but that is irrelevant. If you have a wholly new process for making displays (say, using a new chemical compound), that could be patentable, but changing a “5” to a “6” should not be patentable because “changing a 5 to a 6” is not fundamentally a change in nature. Taking something unpatentable and adding the phrase “doing it with a computer” should not change an unpatentable invention into a patentable one; the Supreme Court understood that, but the PTO still fails to understand that.

I think pharmaceutical companies are afraid of any patent reform laws, because they’re afraid that a change in the patent system might hurt them. But if the patent system isn’t fixed - by eliminating business method patents and software patents - the entire patent system might become too overwhelmed to function, and thus eventually scrapped. I don’t know if pharma patents are more help than hinderance; I’m not an expert in that area. But I make my living with software, and it’s obvious to me (and most other software practitioners) that software patents and business patents are becoming a massive drag on innovation. If we can’t fix the patent system, we’ll have to abolish the patent system completely. A lot of lawyers will be unhappy if the patent system is eliminated, but there are more non-lawyers than lawyers. If the pharma companies want to have a working patent system, then they’ll need to help reign in patents in other areas, or the whole system may collapse.

path: /misc | Current Weblog | permanent link to this entry