SFLC Provides Background Info for Bilski
by Joe Brockmeier - Nov. 06, 2009Comments (4)- Related Blog Posts
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The U.S. Supreme Court will be hearing opening arguments on Bilski vs. Kappos on Monday, November 9th. Not surprisingly, many open source advocates are on the edge of their seats because it's an opportunity for the Supreme Court to decide that software is not patentable. Confused about the details? As part of its mission to advance Free, Libre, and Open Source Software (FLOSS) through "law-related services," the Software Freedom Law Center (SFLC) has provided a backgrounder with information on briefs filed by parties of interest to the FLOSS community.
The page also provides additional resources discussing the Bilski case and its implications for FLOSS. The Electronic Frontier Foundation (EFF) has a good summary of the case, and describes Bilski as "an appellate court case that called into question business method patents and curtailed efforts to claim monopolies on basic human skills, behaviors, and interactions. Bilski challenged the rejection of his application for a patent on a method of managing the risk of bad weather through commodities trading."
Even though the case is not specifically about software patents, it created a test for patents that is broad enough to restrict granting patents on some software as well. Some of the amicus briefs have been filed in support of the respondent (Kappos), and some are going a step further and asking the court to affirm that software is not patentable.
According to the SFLC, 66 amicus briefs have been filed with the court. Of the briefs filed, 24 side with the U.S. Patent and Trademark Office (USPTO), 16 are against it, and 26 of the briefs are in support of neither party.
IBM, for example "walks a fine line between opposing patents on business methods and supporting 'patent reform' as applied to software" with its brief, which isn't surprising for a company that simultaneously has a huge interest in FLOSS and is the world's largest patent holder.
Red Hat and the IEEE have weighed in heavily in support of affirmance, meaning that they are asking the court to go a step farther and affirm that decision smacks down software patents as well as business method patents.
It's hard to tell which way the court might side, and it won't be decided on Monday. However, if the court decides that software is not patentable it will be a huge win for FLOSS.
Joe 'Zonker' Brockmeier is a longtime FOSS advocate, and currently works for Novell as the community manager for openSUSE. Prior to joining Novell, Brockmeier worked as a technology journalist covering the open source beat for a number of publications, including Linux Magazine, Linux Weekly News, Linux.com, UnixReview.com, IBM developerWorks, and many others.
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