Red Hat has filed an amicus brief with the United States Supreme Court. In the brief, Red Hat explains the practical problems of software patents to software developers.

The brief, filed in the Bilski case, asks the Supreme Court to adopt the lower court's machine-or-transformation test and to make clear that it excludes software from patentability.

The Bilski case involves the standard for patenting a process. The case concerns a business method patent, but involves many of the same issues as software patents.

“Red Hat continues its commitment to the free and open source software community by taking a strong position against bad software patents,” said Rob Tiller, vice president and assistant general counsel, IP for Red Hat. “Our patent system is supposed to foster innovation, but for open source and software in general, it does the opposite. Software patents form a minefield that slows and discourages software innovation. The Bilski case presents a great opportunity for the Supreme Court to rectify this problem.”

Patenting of software exploded in the 1990s based on judicial decisions changing the test for patentable subject matter. 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.

The Federal Circuit set forth a clear test to determine if a process is patentable in stating that it must be either “tied to a particular machine or apparatus” or must “transform a particular article into a different state or thing.” Red Hat argues that this standard is consistent with Supreme Court case law, and that it should be applied to exclude algorithms, including computer software, from patenting.

The scope of patentable subject matter is an issue of critical importance to the future development of all software, including open source. The Supreme Court's Bilski decision could clarify the law and lessen the risks that innovation will be hindered by patents. Oral argument is scheduled for November 9, 2009.

Red Hat has consistently supported patent reform to address problems posed to open source and other software developers. It previously filed an amicus brief in the Bilski case with the Federal Circuit Court of Appeals.