I’m reading some of the amicus briefs in the Bilski case, and I’m struck by how vacuous they are. Consider this passage of Yahoo’s brief, purporting to give an example of the kind of technology patents ought to cover:
A concrete example illustrates this conceptual failing. Much of the popular music to which consumers listen today is heard in “MP3” format. MP3 is a standard for compressing digital audio files—a compression algorithm based on characteristics of human hearing that removes approximately 90% of the data from digital music files without substantially affecting humans’ perception of the reproduced sound. The MP3 algorithm can be thought of as a complex mathematical formula with a specific application. But it does not result in any “physical” transformation—only the digital data are altered. Nor is it “tied” to any “particular” machine—indeed, while a “particular” machine could certainly be built to run the algorithm, one of its chief benefits is that it may be run on any “general purpose” computer. The process may, in other words, be instantiated in either software or hardware. Few would doubt that this is the kind of technological advance meriting patent protection and, in fact, the PTO issued a patent for MP3 technology. See U.S. Patent No. 5,579,430 (filed Jan. 26, 1995 with a priority date of
Apr. 17, 1989). But this innovation would not appear to be patentable under a strict interpretation of the machine-or-transformation test.
Now there are a number of interesting things one could say about MP3 patents. We could mention, for example, that open standards like this are particular vulnerable to patent holdup problems, where parties encourage the use of technologies in which they happen to have pending patents. We could mention that the proliferation of codec patents has hampered the development of open source media software. We could discuss whether the people who acquired these patents were the key figures in developing the MP3 format.
But the Yahoo! brief does nothing of the sort. Indeed, this paragraph is all that’s said about MP3 patents. Yahoo’s lawyers apparently find it so obvious that this is something that should be patent-eligible that no further comment is needed. As a member of the (apparently small) class of people who don’t regard patent 5,579,430 as obviously desirable, this is a little galling.
I’m hoping I’ll come across meatier arguments as I read more briefs. But in my experience, substantive defenses of software patents are few and far between. Rather, you tend to get a lot of hand-waving and question-begging. Most writing about patent law is by and for patent lawyers, who tend to think the world would be a better place if patent lawyers had their fingers in a larger share of the economy. So most defenses of software patents tend to start from the premise that patents always (or almost always) promote innovation, and doesn’t bother to delve too deeply into the specifics of how software patents might promote or discourage innovation.
