Bilski case: the United States starts to clean the software patents minefield

Paris June 28th. Press release.

The US Supreme Court has issued on Monday a ruling that many people had been waiting for in the so-called "Bilski" case1, regarding a patent on a business method. This decision, even though it does not exclude every software from patentability, invalidates a majority of them, including those patents on computer implemented intellectual methods. It is now time for European lawmakers to halt software patents' proliferation in Europe.

In the United States, ever since the creation of a Court of Appeal for the Federal Circuit in the eighties, patents on basically everything made by man under the sun2 have been upheld by the Court. This proliferation has lead to a skyrocketing number of patent litigations and has made any software development akin to the crossing of a minefield, liable to blow up at every single line of code.

The Supreme Court has decided today to limit the tendency of the US Patent office to grant software patents. Though it did not rule out the possibility of patenting business methods, it upheld that computer algorithms were abstract ideas and consequently were non-patentable. Although one could deplore the fact that the Supreme Court did not offer some clear test to define the boundaries of what is patentable and what is not, it clearly rejected the habit initiated by the Court of Appeal of the Federal Circuit3 to grant patent on almost every intellectual method.

In Europe, it is time for lawmakers to regain control.

Such a corrective mechanism could not be brought forward in the European Union: its patent system is regulated by a multilateral organization, outside the scope of any democratic control. Hence, no judiciary authority, such as the Supreme Court, has the power to control the European Patent Office and to correct its drifts.

Moreover, the small world of patents proved it was unable to correct itself. In Europe last month, the highest judiciary instance of the European Patent Office refused to rule on software patentability and called for the lawmakers to take responsibility on the issue: "when juridiciary-driven legal development meets its limits, it is time for the legislator to take over"

This demand relates to April's stance on the issue. "The Supreme Court of the US just proved that without an effective counterpower the patent system left to its own devices is creating a landmine for innovation, which becomes infeasible. It is time for Europe as well to tackle the reform of its own patent system. The European legislator, i.e. the European Parliament and national parliaments, has to clearly restate the non-patentability of software" commented Gérald Sédrati-Dinet, voluntary counselor on software patents for April.


About April

Founded in 1996, April is the main French advocacy association devoted to promote and protect Free/Libre Software. With its 5476 members (5004 individuals, 472 businesses, associations and organizations), April is a pioneer of Free Software in France. Since 1996, it is a major player in the democratization and the spread of free software and open standards to the general public, professionals and institutions in the French-speaking world. It also acts as a watchdog on digital freedoms, warning the public about the dangers of private interests keeping an exclusive stranglehold on information and knowledge.

Press contacts:

Frédéric Couchet, Executive Director, +33 6 60 68 89 31
Gérald Sédrati-Dinet, Voluntary Counselor on software patents +33 6 60 56 36 45

  • 1. This case is about a patent by Bernard Bilski and Rand Warsaw, relating to a method that helps how to protect or hedge against the risk of prince changes for commodities buyers and sellers in the energy market. The patent claim was rejected by both the US Patent Office and the Court of Appeal of the Federal Circuit, on the grounds that it only merely solves a purely mathematical problem without any limitation to a practical application. See the documentary "Patent Absurdity" for more details.
  • 2. This is the excuse used by the Court of Appeal to justify the patentability of computer implemented intellectual methods in the State Sreet Bank case
  • 3. in the Street Bank case.