On November 9, The Supreme Court of the United States will hear opening arguments in the most high stakes patent law case on its docket in more than two decades, Bilski v. Kappos. Opponents of software patents, like the SFLC, hope that the court will not only reject Bilski’s application, but reaffirm that software is not patentable.

The SFLC has compiled the following background material to Bilski.

Highlights of the Briefs

Of the 66 amicus briefs submitted to the court, 26 are in support of neither party, 24 are in favor of the PTO, and 16 are against it. The SFLC has reviewed the briefs and published a summary of some of the main arguments below. A complete list of the briefs can be found at the American Bar Association website.

Our Brief

As a legal services organization for free and open source software (FOSS), we filed a brief in support of the respondent arguing (1) that all software is unpatentable under Supreme Court precedent, (2) that software patenting reduces the level of innovation in software, and (3) that constitutional limitations from the First Amendment prevent Congress from making patent law that covers mental steps, basic ideas, or algorithms. [html] [ps] [pdf]

Additional Briefs in Support of Respondent

Free Software Foundation – The leaders of the free software movement summarize the harm done to software development by treating software as patentable, and the specific harm done to users by patented data formats causing incompatibility among programs people use in daily life. [html] [pdf]

Bloomberg LLC – Business information publisher argues that “business and financial methods are unpatentable because they do not meet the Constitutional requirement to promote the useful art,” and approving the “machine or transformation test” established by the Court of Appeals. [pdf]

American Insurance Association – Insurance trade group says insurers are particularly vulnerable to trolls with business method patents on long-standing insurance underwriting practices, adding computerization claims to routine insurance service activities. [pdf]

Google, Bank of America, et al. – Multiple information and financial services companies argue that settled principles of patent law preclude patents like that of Bilski and Warsaw. No change in legal doctrine is needed, according to these amici. [pdf]

American Bar Association – A voluntary, conservative, professional organization for lawyers argues in favor of the status quo in patent law, but says this particular patent is bad. [pdf]

Internet retailers – Retailers such as L.L. Bean and J.C. Penney, no doubt with the Amazon one-click patent in mind, argue that patent liability for retailers simply selling on the net imposes intolerable burdens on them. “[L]ike Dante’s Virgil, the Internet Retailers can serve as guides to the fissures in the patent laws created by the endorsement and proliferation of business method patents,” the brief says. [pdf]

In Support of Neither Party

IBM – The world’s largest patent holder walks a fine line between opposing patents on business methods and supporting “patent reform” as applied to software. [pdf]

In Support of Affirmance

Red Hat – A leading commercial distributor of free and open source software calls attention to the commercial distractions and costly “deterrence” measures made necessary by patents on software. [pdf]

IEEE – A leading standards organization in the field of IT argues that software patenting provides incentives for engineering innovation, and misdescribes free and open source developers’ concerns about software patenting as “like underdeveloped nations” cloning others’ technological innovations. [pdf]

Additional Resources

• SFLC Director Eben Moglen gave a speech at Cardozo Law School on November 2nd about U.S. Patent Law as it applies to Bilski. Recordings are available. [Audio] [Video]
• Eben’s recent commentary on Freedom Now or Huffington Post
• The Software Freedom Law Show: Episode 0x18: Re Bilski’s Briefs
  Bradley Kuhn and Aaron Williamson give their take on various Bilski briefs and their relation to the free software community.
• Groklaw’s Bilski coverage from the original district case onward.
• Wikipedia’s Bilski page
• End Software Patent’s collection of amicus brief discussion links
• Patently-o’s own summary of the Bilski Supreme Court briefs