Homework 5 - Bilski v. Kappos Brief: Software Freedom Law Center (Potter)

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Interest of the Amicus Curiae

The Software Freedom Law Center (SFLC) is a nonprofit legal organization that provides representation and legal services for the protection and advancement of "free software" (i.e. open source software). The SFLC wants to prevent the extension of patent protection to software programs because this would impede the progress of open source software development.

Main Argument Points

  • Software code is simply a series of algorithms. It is an abstract idea and is thus unpatentable
  • The SFLC agrees with the Supreme Court precedent that software is only patentable when serving as part of a process that involves a "special-purpose" machine or results in some transformation of matter
    • They argue that this is "the outcome best calculated to produce maximum innovation in the production of computer software under contemporary technical conditions"
  • The "free software movement" revolutionized software production worldwide
    • It is based on the thought that "ideas themselves will grow best if left most free to be learned and improved by all"
  • The free software community objects to software patents because they believe that the free exchange of information is essential to free societies
    • They favor the "incremental improvement of the art by everyone" rather than by a small number of company programmers
    • Innovation will happen much more efficiently through free software
  • They cite a study which suggests that software patents stifle innovation rather than promoting it
  • They support copyright protection for software for 2 main reasons
  1. The monopoly is limited to the authors expression while the idea is still "instantly available for public exploitation"
  2. The fair use doctrine still allows use of copyrighted expressions for some purposes
  • Patents on software would upset the balance between the First Amendment and the Patent Act by limiting freedom of expression
  • Source code sharing is fundamental to scholarship
    • Computer science courses and textbooks rely heavily on source code and require students to express ideas in existing programming languages
    • Programmer's abilities to comment on and improve ideas and algorithms would be severely limited without the use of source code