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…