[odf-discuss] FFII news release regarding software patents

[marbux]

A press release relevant to the validity of patents reading on file formats:

<http://lwn.net/Articles/282000/>

"Brussels, 13 May 2008 -- European Commissioner McCreevy is pushing
for a bilateral patent treaty with the United States. This Tuesday 13
May in Brussels, White House and European representatives will try to
adopt a tight roadmap for the signature of a EU-US patent treaty by
the end of the year. Parts of the proposed treaty will contain
provision on software patents, and could legalise them on both sides
of the Atlantic. "

[more]

The press release has links to government documents from both sides of
the pond that offer tantalizing glimpses of a far less than fully
transparent inter-governmental process. The mentioned deadline hints
that the Bush Administration lacks confidence that its successor would
sign the same agreement.

However, one should enter into the mix the facts that: [i] in the
U.S., treaties must be ratified by the Senate and a different
political party currently has the balance of votes in the Senate; and
[ii] a year and a half ago or so, the U.S. Supreme Court hinted that
it was interested in receiving a case in which is might decide the
constitutionality of software patents. Several justices observed at
the oral argument of that case that the Court had never authorized
software patents. The Supreme Court specifically left the question
undecided in three prior case decisions.

The Bilski case now before the Federal Circuit Court of Appeals may
prove to be the case the Supreme Court was soliciting. The Federal
Circuit's seemingly abrupt decision to re-examine its prior rulings on
business process patents undoubtedly stems at least in large part from
the justice's remarks discussed above and the majority's hint that it
is now ready to determine the constitutionality of software patents.

The Supreme Court has previously held that the Constitution's Patent
Clause imposes constitutional constraints on what Congress may
authorize to be patented. "The clause is both a grant of power and a
limitation." Graham v. John Deere,
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=383&invol=1&pageno=17>.

My understanding of the Court's jurisprudence on the precedence of
treaties is that such a treaty would most likely be afforded no more
deference than a statute enacted by Congress, particularly given that
the Constitution assigns the power to create and define a patent
system to the full Congress, rather than just to the Senate that might
ratify such a treaty. I.e., to argue that software patents in the U.S.
could in fact be legitimized by a treaty seems in my view somewhat
dubious. My crystal ball says the Patent Clause constraints imposed by
the Constitution would be regarded as superior to such a treaty.

Still, as former Justice Jackson famously said, "We are not final
because we are infallible, but we are infallible only because we are
final." Predicting where judges will land is the lawyer's sport but at
least one lawyer loses in every case.

My 2 cents.

Best regards,

Paul