Bilski II: Red Hat Appeals to Supreme Court over Software Non-Patentability

Oct 05, 2009

The U.S. is known for its patent friendliness. But a Supreme Court decision in 2008 overturned a patent application by Bernard L. Bilski and Rand A. Warsaw for a risk mitigation process. Now Red Hat is using the so-called Bilski case in support of software non-patentability.

"One Small Leap for Open Source, One Giant Leap for Mankind" is how Red Hat CEO Jim Whitehurst titled his press release related to Red Hat's recent appeal to remove pantentability for software. Motivation came from the Bilski case that the U.S. Supreme Court will reopen in the next few weeks. While software patent advocates want to use the opportunity to reverse the 2006 decision and continue to make algorithms patentable, Red Hat is going in the opposite direction by requesting software to be unpatentable. According to Whitehurst:

  • What if you could develop software without risking a patent infringement lawsuit?
  • What if open source innovation was unencumbered by lurking patent trolls?
  • What if there were no software patents?

The most important question is obviously the last one. To present the case to the Supreme Court to reevaluate Bilski and provide them with supporting evidence, Red Hat filed an amicus curiae brief. The brief presents their standpoint: "The Court should adopt this test and make clear that it excludes software from patenting."

The 28-page brief summarizes Red Hat's goal and that of free software altogether in three arguments:

1. The Court has already made a prior decision establishing that abstract ideas are not patentable, and that software patents fall into this category.

2. Software patents can cause dramatic harm to the innovation process in software.

3. An abstract idea does not become patentable merely by implementing it in computer software.

Even if chances are relatively low that software patents are completely wiped away, a re-affirmation of the Bilski case would afford software patent opponents some clear support.

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