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Amicus Avalanche Opposing Software Patents in the United States (Novell Still Missing)

Avalanche at love land

Summary: Red Hat, the FSF, and the SFLC submit amicus briefs for the Bilski case

NOW there is a real chance of ending software patents. Here is a summary of older Bilski briefs and here is a newer list which can also be found at the ABA Web site.

Bilski v. Kappos, Under Sec’y of Commerce for Intellectual Prop. and Dir., Patent and Trademark Office, Docket No. 08-964

So who are the latest filers to oppose software patents? Not Novell of course; Novell is busy applying for more software patents [1, 2]. Red Hat, on the other hand, wants to put an end to this practice, so let's start with the amicus brief from them.

Red Hat

The most major submission in terms of impact was the one from Red Hat. The company advanced it with a press release, which was followed by coverage from Brian Proffitt (Linux Foundation) and a variety of other Web sites.

David Neal writes in The Inquirer:

Red Hat argues that "patent trolls" have exploited the current legal system, and are developing lawsuits that make the most of the confusion surrounding the hundreds of thousands of patents that "cover abstract technology in vague and difficult-to-interpret terms".

Here is the perspective of Red Hat's CEO:

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 United States Supreme Court will be reviewing the Bilski case in the coming weeks. The Court’s decision in this case could help move some of these “what ifs” closer to reality.

IDG writes:

Red Hat is adding its say to the Bilski patent case, filing a brief with the U.S. Supreme Court emphasizing practical problems with software patents.

Red Hat argues that the patent system is supposed to foster innovation, but in software it does the opposite, slowing and discouraging innovation. Software products may involve thousands of patentable components, leaving developers to risk defending costly patent infringement claims.

Groklaw has the brief as plain text.

They stand alone alone so far among vendors, willing to stand up and express what the FOSS community would really say if it could speak with one voice to the Supreme Court. This is certainly what *I* would say if I had that chance. And so I am satisfied. I was going down the depressing list of briefs filed for Petitioner on the ABA's list of filed amicus briefs, and it was so frustrating to see no one saying anything like what I believe to be technically true about software patents or addressing the specific needs of Free and Open Source software. At last someone has told them what we wanted to say. I just hope the Supreme Court has some techies in the clerk pool!

SJVN is very supportive of Red Hat's action.

What do Microsoft, Red Hat, and Canonical all have in common? They all dislike software patents. Don't get me wrong. Many companies that are anti-patent also hold and use patents against their enemies. Microsoft is one of those. But, if you get an in-house corporate IP (intellectual property) lawyer from any company in a bar, he or she will tell you that software patents are awful. So, I'm pleased to report that Red Hat, has filed an amicus curiae brief with SCOTUS (Supreme Court of the United States) asking the Court to adopt the Bilski case ruling and explictly extend it so that software can't be patented.

Jason from the Mono-Nono Web site brings attention to the following:


A further note of interest is the references Red Hat draws upon, including thinkers such as Donald Knuth and Richard M. Stallman.

For a laugh, one might like to contrast the vital effort Red Hat is making here attempting to correct what is almost universally recognized as a broken patent system hindering software innovation and personal freedom with Novell’s press release today, “Got Mono?” where Novell takes another opportunity to hawk Mono and .NET.

The next post will deal with this latest Mono promotion from Novell.


The Free Software Foundation filed a brief, which is available as text too.

The Free Software Foundation (FSF) today submitted an amicus curiae brief calling on the Supreme Court to affirm that software ideas are not patentable. After outlining the positive impact that the free software movement and the GNU General Public License (GNU GPL) have had on computer use, the brief explains how software patents are an obstacle and a danger to software developers.


Even the Software Freedom Law Center submitted a brief, which is further analysed and discussed at Groklaw.

The Software Freedom Law Center has now filed its brief in Bilski. You can read it online here, as well as download it as a PDF or as Postscript. It raises three major points: 1) software is just algorithms for computers in human readable terms, and algorithms are not patentable; 2) excluding software from patentable subject matter encourages innovation in software; and 3) the First Amendment prohibits permitting the patenting of abstract ideas. I think you'll find that last point the most interesting.

It is worth remembering that IBM is not on the good side.


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