Red Hat comes out swinging against software patents

What do Microsoft, Red Hat, and Canonical all have in common? Disliking software patents. Don't get me wrong. Many companies that are anti-patent also hold and use patents against their enemies -- Microsoft is one of them. But, if you hear any in-house corporate IP (intellectual property) lawyer in a bar, they will tell you that software patents are awful. So, I'm pleased to report that Red Hat has filed an amicus curiae brief with SCOTUS (Supreme Court of the United States) asking the Court to adopt the Bilski case ruling and explicitly extend it so that software can't be patented.

The Reader Digest's condensed version of the Bilski case decision: the U.S. Court of Appeals for the Federal Circuit ruled that you couldn't patent business methods. By extension, this means most software can’t be patented either.

The Bilski decision stated that for a process to be patentable, 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 should also be applied to exclude algorithms, including computer software, from patenting. Amen, brother!

Please, SCOTUS: uphold Bilski and zap software patents at the same time. I don't care if you develop open-source or closed-source programs. Software patents can take years of work and turn it into a business disaster, and the first you'll know about it is when you're served papers from the patent-lawsuit happy U.S. District Court for the Eastern District of Texas.

If you're a small business, that lawsuit itself, regardless of its merits, may be enough to kill you off. In 2003, the average cost of patent litigation was $2-million. It's gone up considerably since then. Big or small, open-source or proprietary, patent lawsuits do nothing but hurt software developers and their companies. Rob Tiller, Red Hat's vice president and assistant general counsel for IP for Red Hat, said in a statement that "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."

Red Hat's far from the only one asking SCOTUS to uphold Bilski. Obama's administration has also come out in favor of cleaning up the software patent mess.

The only people who would be hurt by rationalizing software patents are the patent trolls: nasty little businesses that gather up otherwise worthless software patents and wait for someone to turn an idea hidden within these patents into a product, and then, after all the work is done, strike for a quick hit. We need parasite businesses in this economy like we need another mortgage meltdown.

I can only hope that SCOTUS will do the right thing and kill off both business and software patents once and for all. Bilski goes before the court on November 9th. If we're lucky, in a few months, most software patents will be dumped in the dustbin of history where they belong.