Software Freedom Law Center

April 6, 2010 by Eben Moglen

Gene Patenting and Free Software: A Breakthrough

[Crossposted from Opensource.com].

Last week, to the surprise of patent lawyers and the biotechnology industry, advocates for technological freedom won an enormous victory against socially harmful distortions of patent law. The Federal District Court for the Southern District of New York held invalid patents owned by Myriad Genetics on diagnostic testing for genetic susceptibility to the most common hereditary forms of breast and ovarian cancer. By "patenting" the right to determine whether the BRCA1 and BRCA2 genes are present in the relevant mutated form in a women's genome, Myriad Genetics has been able to exclude all other laboratories from conducting the test. Patients and their insurers have paid much more, and women and their families have waited crucial weeks longer than necessary for information relevant to treatment and potentially affecting survival.

The Public Patent Foundation and the American Civil Liberties Union challenged the patent on the ground that the Act does not permit the patenting of "facts of nature." In a lengthy and carefully argued opinion granting summary judgment, Judge Robert Sweet agreed. Judge Sweet rejected the basic premise on which gene testing patents such as the one granted to Myriad have been justified: that the amplification of naturally-occurring DNA sequences is a patentable transformation of the DNA molecule. Instead, Judge Sweet adopted the view put forward by Myriad's own expert witnesses, that DNA is a special molecule, "a physical carrier of information," and therefore held that the reading of such naturally-occurring information is not patentable subject matter. Whether posed as a new composition of matter, or as a method for "analyzing" or "comparing" DNA sequences, Judge Sweet held, Myriad's attempt to gain a monopoly on looking at a particular DNA sequence to find out what it says falls outside the permissible scope of patent law.

In reaching his legal conclusions, Judge Sweet relied significantly on the recent opinion of the Court of Appeals for the Federal Circuit, which has primary responsibility for interpreting the nation's patent law, In re Bilski, 535 F.3d 943 (2008), now pending in the Supreme Court. Bilski, as readers here will know, raises issues concerning the patentability of business methods and computer software, on essentially the same basic ground: that, as the Supreme Court has said, "phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Judge Sweet's opinion may be said to raise the stakes on Bilski slightly, but the parts of the Federal Circuit opinion on which Judge Sweet relies are not about the "specialized machine or transformation of matter" test adopted by the Federal Circuit to distinguish patentable from unpatentable inventions involving computer software and methods of doing business. Judge Sweet followed the Federal Circuit closely in its expression of the settled law of patent scope, making it more unlikely that the Federal Circuit, which will hear the inevitable appeal from Judge Sweet's judgment, will be inclined to disturb the conclusion.

Instead, Judge Sweet's ruling shows the beginning of a broader front in the judicial determination to reign in patenting that has gone too far, turning information that should be free to all into property exclusively held by a few. Neither our patent law itself, nor the guarantees of freedom to learn and teach protected by the First Amendment, can tolerate the widespread creation of statutory monopolies on ideas. Judge Sweet's conclusion with respect to gene patenting confirms and supports the position taken by the amici curiae in Bilski, including the Software Freedom Law Center, that computer software standing by itself, another carrier of information about algorithms, or mental processes, is not within the scope of patent law. Judge Sweet's opinion illuminates another of the large classes of human knowledge presently being made the subject of statutory monopolies through the patent system, but which cannot legally be made monopolies at all.

Americans have begun to understand a little bit about how, in the last two decades, corporations and their servants turned more and more of our society's opportunities into property for themselves. The sorrow and anger that is entering our politics, as honorable working people realize how badly they were had, will not soon abate. That the patent system too was gamed by the powerful at the expense of everybody else has not been fully grasped yet. But it will be. Time will show that Judge Sweet was more than courageous in his ruling, that he was also speaking with the voice of America behind him, as all great judges do.

Posted by Eben Moglen on April 6, 2010

Tags: infringement, patents, Software Freedom Law Center, Eben Moglen, Bilski v. Kappos, Biotechnology , DNA, Software Patents, Myriad Genetics, Judge Sweet, First Amendment, Breast Cancer , Ovarian Cancer

March 29, 2010 by Lysandra Ohrstrom

Free Software: Phase Two

Free software is ubiquitous. It runs everywhere on (almost) everything. The question that dominated most of the discussions at the Libre Planet Conference in Boston about a week ago is what now? How can the community capitalize on its achievements to make the movement more inclusive and reconceive the relationship between free software and privacy?

Most attendees seem to agree that it's time to proselytize to the non-hacker masses and get them to care about the privacy, freedom, and control they sacrifice when buying proprietary technology. At John Gilmore's group discussion on the future of free software Saturday morning, people proposed making the user interface more friendly; addressing freedom in the browser space; developing a solid gaming platform for free software. "My experience is that if you give people who play games the option to improve them they will," one attendee said. "I know people who became programmers so they could improve the games they played."

The SFLC's founding director, Eben Moglen, said in his talk that the movement has reached "a point of inflection." The challenge it will face in "Free Software: Phase Two" is to explain the relationship between privacy, the integrity of human personality, and free software. The movement will have to figure out how to convince people they need a solution to a problem they don't know exists, he said. "It's not about we're done. The war is over. It's about, what's next."

I think ordinary people who don't write computer code or think about the consequences of proprietary technology are aware that there is a problem; that they are forfeiting too much control over the tasks and relationships that make-up daily life to unknown forces in the digital world. The cyber security threats, malicious hacker attacks in China, car malfunctions, and voting booth problems that dominate the news cycle can all be traced back to potential software glitches. People know about these problems. They just don't know how the problems are connected or how to fix them.

The challenge facing the free software community is to explain how the Toyota recall and Google's withdrawal from China can be traced to one cause: namely giving for-profit companies monopolistic access to the source code of the thousands of software programs that we are increasingly reliant upon. What's lost in the mainstream media coverage of these seemingly unrelated events is an explanation of a solution that already exists: open, auditable source code that anyone can view and detect flaws in.

The first step for the SFLC and attendees of Libre Planet is to connect the various news headlines to a central problem: restricted access to source code. Then explain that it doesn't have to be this way. The technology wasn't designed to infantilize users. It was designed to give users a set of tools to collaborate and communicate in a digital world.

I think the long-term challenge facing the free software community is even more fundamental than telling people they need a solution to a problem they did not know existed. You need to remind people that they don't know how the machines they interact with every day work. You need to open the doors of the community to the end-users for whom the difference between C++ and Java Script is as foreign as Dari and Pashto. The challenge is to encourage people who are used to having a passive relationship with the technology they use to search inside their computers; to show them that digital citizenship is about more than curating the photos you post on Facebook and limiting the information you transmit online. It's about self-sufficiency. It's about first understanding how computers work and customizing them, and then taking control of your own information and the activities you have entrusted to Wizard of Oz-type entities for no other reason than you didn't think you had a choice.

Posted by Lysandra Ohrstrom on March 29, 2010

Tags: technology, community, free software, Social Networking, Software Freedom Law Center, Technology Policy, Eben Moglen, Online Privacy, John Gilmore, Free Software Foundation, Libre Planet