Right now in the United States there is a legal case proceeding that has important implications for the software industry and modern business in general. The case began in 1999 when The PTO (American Patent and Trademark Office) refused to award a patent for a business method (model) developed by Bernard Bilski. A year earlier a court had ruled that business methods- and by extension, software processes are eligible for patents if they produce a “useful, concrete and tangible result”. Bilski’s patent was denied on grounds that it was not implemented on a specific apparatus (or technology) but rather manipulated an abstract idea to solve a purely mathematical problem. It’s like saying you can’t patent dialectical reasoning or reductionism, being thought processes, or a form of longhand math you discover as a process unless it leaves the metaphysical realm and enters into the physical process of adding value to work. Solving a problem isn’t good enough, it has to jump into a manifested value. So in short the question becomes can we intrinsically value a process if it is not directly engaged in facilitating the use of a physical tool or creating a byproduct of some value. “A useful, concrete and tangible result” as the court originally stated. Now the questions being asked by the Supreme Court today are such:

Sotomayor-“what if we say something as simple as patent law does not protect business methods?”

Software companies employ methods or a development process to create, test and debug products, which of course we call software. Furthermore, software products themselves can conversely be categorized as methods in and of themsleves. These methods achieve what can be conceived as metaphysical problem solving. This was the crux of the problem in the first court ruling. Where is the tangibility if software deals in strictly non-physical value adding? (Although one could argue we can reduce all processes to the physical, being that computers relate eventually to human physical existence) This is why many in the software and technology industries are concerned that we are seeing a Pandora’s box of legislative implications being opened up in Washington. The most pressing concern, addressed by Sotomayor, is that a ruling in a business method case can call into question “the continued viability of software and medical innovations.” Justice Stewart, in a mild outburst of preemptive judicial interpretation, reaffirmed today that saying no to patenting all business methods would naturally call into question software, and that he felt this is not what government wanted to do.  Justice Scalia then suggested that “business methods apart from machines could not be patentable.” He referenced horse whispering as a process, and pointed out how ridiculous he felt patenting a horse whispering process would be. So there are all kinds of ideas and questions floating around the room.

The session in court today consisted of some very excellent questions asked by the Justices (see a deeper review of the whole day in court here) and a bunch of random shots in the dark about how to frame the question and what kind of distinctions we could safely make that won’t infringe on software and technology that have now become crucial to our everyday lives. What’s interesting is that according to Gene Quinn, Patent Attorney and founder of  IPWatchdog (who was present in the courtroom today) the Supreme Court Justices seemed to swing from a position that began against Bilski and in support of the 1999 ruling to the opposite the further the debate ran on.

This is going to continue to be a very interesting case and one that Software developers in Vancouver and elsewhere may want to watch closely.

One very glaring question to me is that a precedent has already been set that I think has been completely overlooked in this case. Gene patents have been filed by hundreds of corporations. I would reason that genes represent themselves a process. Whether these genes have been used (getting back to the utility argument in which they manifestly become of value physically) or have simply sat in dishes in storage facilities, genes have been patented. Do they add value? Do they have “A useful, concrete and tangible result?” I would reason that in many cases no they don’t. Having a patent on a specific gene that essentially solves the problem of how to make a fly’s wing or a spider’s web, does not intrinsically hold tangible value.  Much like a process that solves the problem of how to organize you company or production method. Putting it to use to create something does, and that once again constitutes another process. Yet scores of genes have been patented by companies. Therefore if genes are a process that creates something we have a precedent in which a process, in fact many processes have in fact been patented.  It would likely be argued against me that genes are themselves physical things. So the argument really does become one of patenting the metaphysical versus physical. And if something is not physical can we safely say it exists? So now the court case becomes entwined in a teleological versus metaphysical question of what constitutes valuing a process to the point that it may be justifiably patented though not concretely existent? How can you patent something that does not exist essentially. A process only exists when it is in process, once it stops being in process it no longer exists. This is the kind of argument one could levy against me (or Bilski) for claiming that a business process can be akin to a genetic process. I would argue that as a fly’s wing does not exist until a gene is allowed to create the fly’s wing through its process, that a gene and therefore a business practice both represent a road map to a desired outcome and therefore software processes should be protected like genes have been. I don’t represent the view of the entire Thirdi family I’m sure and I don’t speak on behalf of Thirdi on this, but I did want to break down this issue as I find the philosophical debate around it fascinating.