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Red Hat continued its quest for a remedy to the problem of software patents today by submitting an amicus brief to the Supreme Court in the Bilski case. The Court has decided to address the issue of when abstract subject matter is outside the range of inventions that can be patented. Our brief sets out the background facts related to software patents and asks that the Court address them. As most everyone in the open source software community knows by now, this is a serious issue.

The success of open source software shows that patents are not necessary to promote software innovation. Patents give the right to exclude others from using an invention, but open source developers are not seeking exclusion. They want to share code and collaborate, and patents interfere with this process. Open source developers aren’t alone in understanding the dangers of patents. For example, back in 1991, Bill Gates stated, “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today.” It should be noted that Microsoft recently acquired its 10,000th patent, and Mr. Gates has not, to our knowledge, recently questioned the logic of software patents.

But patents are problematic for innovation. In the 1990s, federal court decisions began allowing patents in areas that had previously been considered too abstract for patenting, including software, and now there are more than 200,000 computer software patents. Modern programs may involve thousands of discrete components that may arguably infringe previously issued patents.

As patent lawyers know, proving patent infringement does not require showing that the accused party copied the patent holder’s product or had knowledge of the patent. A new invention can be completely original, in the sense that it is the product of independent creativity, and also infringe a patent. In fact, most infringement cases involve no allegation that the defendant wrongfully copied someone else’s patented invention.

There is no practical way for software developers to be certain that their freshly conceived code does not infringe some prior patent. The boundaries of individual patents are usually vague and uncertain, and there is no reliable way to clear new products by searching existing patents. This means that an act of creating innovative (or non-innovative) software always entails the possibility of an expensive infringement lawsuit. Under the current law, innovation in software is like sky diving – it requires a substantial tolerance for risk.

In the Bilski case, the Federal Circuit did not directly address the problem of software patents, but limited its decision to the business method claim before it. Even so, it articulated a test that appeared to be good for software innovation. The “machine-or-transformation” test has been read by lower courts to reject a number of software patents. Now that the Supreme Court has taken the case for review, we’ve asked the Court to affirm the test and clarify that it should be applied to exclude software algorithms from patenting.

From the briefs filed so far in Bilski, we’re well aware that many powerful interests do not share our views. It isn’t surprising that beneficiaries of the current system, such as patent lawyers and companies seeking licensing income, would support the status quo. But it is puzzling that others who have been important supporters of the open source community have submitted briefs that ignore the harms caused by software patents. The brief of one large technology company even tried to argue that patents somehow benefit the open source community. Obviously, we disagree. We hope the Court will address this issue, and may the best argument win.