Red Hat offers Supremes an audacious brief

Red Hat offers Supremes an audacious brief

Summary: 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.

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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.

Topics: Linux, CXO, Legal, Open Source, Software, IT Employment

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7 comments
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  • Here's for hoping!

    [i]Given history both arguments make sense. Given politics neither is likely to be accepted any time soon.[/i]

    Come on, Dana. Surely you have hopes, don't you?

    All the big players are in the software patent game only for defensive purposes. The only entities who are in it offensively are the ones who don't actually implement the end result of the "intellectual property" pursuits: the patent trolls.

    Come on - admit it: doesn't your mind think "vulture" every time you see the name in print of Nathan Myhrvold's firm, Intellectual Ventures?
    NetArch.
  • RE: Red Hat offers Supremes an audacious brief

    I don't expect much from the court.
    The real change could come only from changing the patent law to invalidate all software patents.
    Linux Geek
  • *** BREAKING NEWS ***

    <a href="http://www.theonion.com/content/node/29130">Microsoft patents ones and zeroes</a>

    This is a game changer!
    D T Schmitz
    • What?!?!

      This is ludicrous!!!

      This is crazy!!!!

      Loverock, we need your credible and authoritative insight on this.
      Viva la crank dodo
  • Unlikely to succeed in much need changes

    "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."

    And the real reason for patents. Used by large multinationals
    to destroy competition. I believe money involved makes any
    changes unlikely (money talks in politics and the legal
    system).
    Richard Flude
  • RE: Red Hat offers Supremes an audacious brief

    I think it's needed, but at the same time I see it as more of a moneymaker for our bottom feeding lawyers AGAIN and STILL. Entirely too much is left open to interpretation in any actually granted patent I've ever read. Want to slash the cost of products? Slash the need for lawyers. Kill the copyright mudd.
    twaynesdomain-22354355019875063839220739305988
  • Deleted

    NT
    Viva la crank dodo