Godshall: Bilski Brief Summary

Bilski v. Kappos Brief Summary: Brief Amicus Curiae of Red hat, Inc. in Support of Affirmance.

Red Hat, Inc. is one of the leading providers of open source software who has filed a brief arguing in the affirmative. Their two main points are: the lower court correctly applied precedent in ruling that software is not statutory under patent law and that the Federal Circuit Court correctly abandoned a misinterpretation of the limits of what is statutory.

Red Hat, Inc. writes that they are committed to free and open software, which is the basis for much of the software used by government, businesses and individuals. They argue that this type of software produces innovation through allowing large numbers of people to freely collaborate, yielding high quality, rapidly developed, low cost software. The rapid initial progress in software during the 1970’s and 1980’s was a result of the competition resulting from a lack of patentability and Red Hat, Inc. quotes Bill Gates and others who express similar ideas.

These advantages are eliminated through software patents for several reasons. Firstly, software is very complicated, requiring many thousands of successive algorithms. This makes it very difficult to describe in a patent application, making patent infringement a very complicated issue, and therefore slow and costly to prove or disprove. The effect of this is the discouragement of innovation due to the threat of long, costly legal battles. The filing an excessive number of patents for software components as a defensive strategy further make software patents obstructive to innovation.

Red Hat, Inc. argues that the Supreme Court cases of Benson v. Gottschalk and Diamond v. Diehr were correctly decided. These, along with Flook, established the machine-or-transformation test for software-related patents that Red Hat, Inc. argues is the correct limit for what is statutory. They furthermore argue that during the 1990’s, this percent was incorrectly disregarded, leading to an excess of software patents. These, they argue, has discouraged progress and innovation in the software industry.

Thus, Red Hat, Inc. draws two main claims from these arguments. Firstly, that the lower court correctly applied precedent in ruling the patent in question as nonstatutory, as the machine-or-transformation test is a valid test for statutorty-ness. Secondly, the Federal Circuit court correctly abandoned the misinterpretation of what is statutory, which began in the 1990’s.