Re: [fsl-discuss] Re: [Patents] The politics of software over-protection -- moving forward..

[Gregory Aharonian <srctran@world.std.com>]

>>We can argue that the court rulings that have suggested that computer
>>programs are patentable in the USA are lower courts and not parliament or
>>the supreme court, but they are still courts -- and what they say holds
>>until it is challenged in a higher court.

>We can argue that they were not only lower courts: they were wrong.

Software is patentable in the United States mostly due to the decisions
of the Court of Appeals of the Federal Circuit (CAFC), which is not
a lower court, but rather one step below the Supreme Court.  In the
1980s and the 1990s, the CAFC ruled many times that computer programs
are patentable, and then later ruling that business methods are
patentable.  Fed CAFC decisions get reviewed by the Supreme Court, so
when it comes to patent law, the CAFC is effectively the highest court.

For example, in 1996, the Supreme Court upheld a lower court decision
(Lotus v. Borland) that user interfaces were not copyrightable.  In
1999, the Supreme Court refused to reconsider the CAFC decision
(State Street v. Signature) allowing the patenting of business methods.

So unless the CAFC is engaging in some really dubious logic in its
decisions allowing computer program patents (highly unlikely), the 
Supreme Court won't step in, making the CAFC the high court in decising
such issues.

Now Congress can step in and pass some laws, but given their incompetence
in handling the copyright and patent aspects of computer programs for
the last 30 years, I think they will keep the laws as is and let the
courts try to define what Congress is clearly unable and unwilling to
do.

If you want to attack software patents in the US, you have to attack the
decisions of the CAFC.

Greg Aharonian