Red Hat has filed a "friend of the court" brief to the Supreme Court in hopes of having software patents invalidated once and for all.
The brief follows the logic of the U.S. Court of Appeals in re: Bilski but asks the Supremes to go further in deciding the case, now called Bilski vs. Kappos. David Kappos is the new Undersecretary of Commerce for Intellectual property and director of the patent and trademark office.
The brief argues that lower courts erred in the 1990s, disregarding guideposts previously set by the Supreme Court and opening the floodgates for patents based merely on abstract ideas.
This is the heart of the argument:
Because the boundaries of software patents are exceedingly vague and the numbers of issued software patents is now enormous, it is virtually impossible to rule out the possibility that a new software product may arguably infringe some patent.
The brief goes on to argue that given such legal risks only the largest companies can afford to do any kind of software development, especially if it might involve real innovation.
Much of the argument is based on the 1972 case of Gottschalk vs. Benson, a decision written by the legendary William O. Douglas that invalidated a patent for turning binary-coded decimal numbers into pure binary numbers for use in a computer program.
The Benson ruling was that software was "merely a series of mathematical calculations" and thus did not constitute a "process" within the meaning of the Patent Act.
The brief even quotes Microsoft co-founder Bill Gates, speaking in 1991 against the idea of software patents, arguing that if people understood how courts were moving when software was first being developed "the industry would be at a standstill today."
It is, in sum, an audacious brief, as audacious in its way as new Justice Sonia Sotomayor's recent argument that courts erred when they first called corporations persons in the 19th century.
Given history both arguments make sense. Given politics neither is likely to be accepted any time soon.