Open source software specialist Red Hat has submitted alegal briefwhich it hopes will influence the US
Supreme Court's decision in the closing chapter of what has been
dubbed the most important software patenting case in half a
century.
Red Hat fears that the Bilski case, which will come under the
scrutiny of the US courts in November, could re-open the flood
gates to widespread software patenting, exposing the software
industry to unnecessary complexity and costs.
"The Supreme Court's decision on patentable subject matter is of
huge importance to the future of software development, including
open source. The court's ruling on Bilski could clarify the law and
lessen the risks that innovation will be hindered by patents," Red
Hat said in an
amicus
curiae application submitted to the court.
The Bilski ruling had dramatic implications for the software
industry when last October the US Court of Appeals for the Federal
Circuit rejected a 2007 patent application by Pittsburgh inventors
Bernard L Bilski and Rand A Warsaw. The Court of Appeal decided to
limit innovations eligible to patenting to those "tied to a
particular machine or apparatus" or transforming "a particular
article into a different state or thing".
The decision narrowed the scope for patent applications across
many industries, ending more than a decade of frenetic patenting,
during which software developers and companies filed several
hundred thousand software patents.
But the Bilski case will go back to court following a decision
by the
Lower
Court on 1 June this year to grant Bilski and Warsaw the right
to appeal. Oral arguments begin on 9 November.
Rob Tiller, vice-president and assistant general counsel at Red
Hat, said, "It is certainly the case that for many software
developers and companies the patenting system [pre-Bilski] was a
complete encumbrance and it didn't pay its own way."
Some software organisations are hoping that Bilski is successful
and that only minimal restrictions are placed on the patenting of
software.
The
Business Software Alliance, which boasts Microsoft among its
members, argues strenuously that software should be patentable as
this would serve to stimulate innovation in the industry.
It is unclear which side the court will take, or whether it may
adopt a position somewhere in between.