Red Hat Files New Brief in Software Patent Case

The fight against software patents got a big boost yesterday when one Linux company filed an amicus brief with the US Supreme Court urging it to uphold last year’s Bilski vs. Doll decision in the Federal appeals court.

That vendor was Red Hat, which really comes as no surprise. With the veiled threats of software patent enforcement coming from Redmond, and the not-so-veiled threat of any one of a number of patent trolls getting ready to use a purchased patent to pursue litigation, Red Hat would get a huge benefit from the elimination of software patents. Of course, so will everyone else writing code today.

Here’s what’s happening: in 2008, the Federal appeals court upheld a Patent and Trademark Office (PTO) ruling that Bernard Bilski’s method of risk assessment of bad weather through commodities trading was not patent-eligible under Section 101 of the Patent act.

The Court made up a test to benchmark if claimed ideas like this could actually be patentable. The idea has to either be tied to a particular machine or apparatus or transform something into a different state or thing. The Court stated in its ruling that this should be the only applicable test.

And that’s the key thing: if the Supreme Court, which is scheduled to hear oral arguments on the Bilski case on Nov. 9, upholds this ruling against Bilski, the clause “tied to a particular machine or apparatus” will have enormous implications on software patents. Because this means that abstract ideas, particularly the algorithms and process found in, say, software code–are not patentable. This would put all of the PTO’s approvals of software patents into question and very likely decimate the current notion of software patents.

Red Hat’s amicus (“friend of the court”) brief is consistent–they filed a similar brief about how software patents adversely effect the software development industry when the Bilski case was in the Appeals Court. Yesterday’s brief also “asked the Supreme Court to adopt the machine-or-transformation test set forth in the Bilski case and to make clear that it excludes software from patentability,” according to Red Hat CEO Jim Whitehurt in a Thursday blog posting.

If you’re wondering how one court decision can make such a huge difference, recall that it was decisions in the 90s that changed the definition of patentability back then, which led to the current mess we’re in.

“Software patents now number in the hundreds of thousands, and they cover abstract technology in vague and difficult-to-interpret terms. Because software products may involve thousands of patentable components, developers face the risk of having to defend weak-but-costly patent infringement lawsuits. A new class of business enterprise–patent trolls–has developed to file lawsuits to exploit this system,” Red Hat noted in a press release.

Patent litigation is a big source of pain for software development companies, which often has to hold patent portfolios of their own just as a defensive measure to keep from getting sued. Patent litigation is particularly expensive, too, according to Keith Bergelt, CEO of the Open Invention Network (OIN).

In a talk at LinuxCon last week, Bergelt stated: “The unfortunate thing about patent litigation is that it often falls within a seam. Companies have to often hire outside counsel, which is very expensive.”

To illustrate the danger of patents, Bergelt’s OIN, a consortium of six companies (IBM, NEC, Novell, Philips, Red Hat, and Sony) was recently instrumental in the purchase of 22 allegedly Linux-related patents being sold in private auction by Microsoft. Allied Security Trust I, another defensive patent pool, bought the patents from Microsoft. OIN has a patent treaty with AST I, and was able to pick up the patents.

Bergelt explained that AST I often does not hold patents like this for any great length of time if AST I sees no danger

In his talk, Bergelt maintained that Microsoft advertised these patents as being Linux-related. Microsoft has been moving lately towards getting more revenue from its existing patent portfolio, Bergelt explained, and if such a patent sale just happened to land in the hands of a non-practicing entity, so much the better for Redmond. The fact that Microsoft sold the patents to AST I rather than OIN convinces Bergelt that Microsoft had an ulterior motive to sow FUD in the community, even while Microsoft would have plausible deniability in selling to known patent defense fund like AST I.

With all of the complexity of patents and the litigation and business that surrounds them, trying to code without trepidation in such a insane environment is, well, insane. And while I applaud the efforts of OIN, I agree with Bergelt’s other statement in his presentation: “Reform is key.”

Let’s keep our fingers crossed that Red Hat’s efforts and all the others involved in Bilski will convince the Supreme Court justices to uphold Bilski, so real reform can begin.