Open source launches attack on software patents

The two have filed amicus curiae (friend of the court) briefs pertaining to patenting software in a review of the Bilski case, which is now before the Federal Circuit Court of Appeals. In this case, according to a Red Hat blog posting by Rob Tiller, Red Hat's vice president and assistant general counsel for IP, "the appeals court will address the issue of the boundaries of the subject matter that may be patented. The Supreme Court has repeatedly stated that abstract ideas and algorithms (which are the core building blocks of computer programs) are not patentable.

"Applying this principle consistently would greatly narrow the availability of software patents. As the Federal Circuit addresses the standard for patentable subject matter, we urge in our brief that it take account of the perverse effects of the patent system on open source and narrow the standard for patentability."

In a statement, ESP Executive Director Ben Klemens said, "This is an historic opportunity to fix the U.S. patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents. In our brief, the End Software Patents project supports the Supreme Court's long-held position that computer software should not be patentable, and has highlighted to the Court the real economic harm software patents cause the U.S. economy."

Tiller argues that the patent system is "a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent.

"It's impossible to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot be efficiently searched. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus, a risk of litigation exists for every open-source project, and the potential cost of patent litigation runs into millions of dollars for a single case."

To date, no one has successfully sued an open-source project for a patent violation. However, there have been many successful patent suits against proprietary software vendors. Microsoft, for example, was fined $367 million for violating a pair of user-interface patents owned by Alcatel-Lucent in the last few days.

ESP, however, believes that the problem is far greater than just its effects on software developers. In its release, the group states that "massive-scale liability has been created throughout the U.S. economy.

"ESP's brief also demonstrates that this liability is not merely a theoretical prediction, but a real economic harm. Over the last few months alone, ESP has tallied more than 50 non-software companies being sued for infringement regarding their Web sites or other course-of-business software, including the Green Bay Packers, McDonald's, Dole Foods, Kraft Foods, Caterpillar, J.Crew, Burlington Coat Factory, Wal-Mart and Tire Kingdom."

The importance of the Bilski case is that it addresses the core problems of software patents. According to Tiller, "the Supreme Court has repeatedly stated that abstract ideas and algorithms (which are the core building blocks of computer programs) are not patentable."

That sounds straightforward enough, but as ESP explains, the "Court of Appeals for the Federal Circuit...began allowing patents on information plus any physical component: a formula, if saved to a computer's hard drive; a price list, if money is eventually moved; not a correlation, but the act of correlating. The ESP brief recommends re-establishing the Supreme Court's rule that information should not be patentable, even when claimed in tandem with a physical afterthought."

It is Red Hat's and ESP's hope that the Court will reverse its path and rule that simply because an idea can be recorded on physical media or contains a physical step doesn't mean that it's elgible for a patent.

If they are successful in persuading the Court, it could mean the beginning of the end for software patents and the lawsuits that have come with them.

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