On Thursday, Red Hat filed an amicus brief with the U.S. Supreme Court seeking to reject software patents. In what will be an uphill battle for the Linux-based software developer, Red Hat sought to explain the practical problems software patents pose to developers  .
The Red Hat brief is part of the Bilski v. Doll patent-law case, which involves the standard for patenting a process. The case concerns a business method patent, but involves many of the same issues as software patents.
In short, Red Hat's brief asks the Supreme Court to adopt a lower court's machine-or-transformation test and to make clear that it excludes software from patents.
Red Hat Speaks
"Red Hat continues its commitment to the free and open-source software community by taking a strong position against bad software patents," said Rob Tiller, vice president and assistant general counsel for Red Hat. "Our patent system is supposed to foster innovation, but for open-source and software in general, it does the opposite. Software patents form a minefield that slows and discourages software innovation. The Bilski case presents a great opportunity for the Supreme Court to rectify this problem."
Here's the quick history as Red Hat offers it: The practice of patenting software exploded in the 1990s based on judicial decisions changing the test for patentable subject matter. As a result, software patents now number in the hundreds of thousands and cover abstract technology in vague and difficult-to-interpret terms.
Red Hat said that because software products may involve thousands of patentable components, developers face the risk of having to defend against weak but costly patent-infringement lawsuits. A new class of business enterprise -- patent trolls -- has developed to file lawsuits to exploit this system.
When a patent troll is unable to obtain a licensing agreement with another company, Red Hat said, it threatens or enters patent-infringement litigation. Legal experts view the threat of an injunction as the most potent weapon in the patent troll's arsenal.
The Patent Test
A federal court set forth a clear test to determine if a process is patentable -- it must be either "tied to a particular machine or apparatus" or "transform a particular article into a different state or thing." Red Hat argues that this standard is consistent with Supreme Court case law, and it should be applied to exclude algorithms, including computer software, from being patented.
Red Hat said the scope of patentable subject matter is an issue of critical importance to the development of all software, including open source. The Supreme Court's Bilski decision could clarify the law and lessen the risks that innovation will be hindered by patents.
Oral arguments are scheduled for Nov. 9. Red Hat has consistently supported patent reform to address problems posed to open-source and other software developers.
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