October 2, 2009

Today the Software Freedom Law Center (SFLC), provider of pro-bono legal services to non-profit developers and distributors of free and open source software, filed a brief with the United States Supreme Court arguing that software standing alone cannot constitutionally be patented.

In this closely-watched case, the Supreme Court will decide whether the Court of Appeals for the Federal Circuit was correct in restricting patentable processes to those “tied to a particular machine or apparatus,” or which “transform[s] a particular article into a different state or thing,” a conclusion which if fully implemented could bring to an end the widespread patenting of computer programs.

“Software patenting has been a scourge in the global technology industries, let loose by a misinterpretation of US patent law by lower court judges biased in favor of patentability,” said Professor Eben Moglen of Columbia Law School, founding executive director of SFLC. “Over the last twenty years, everyone from Microsoft to academic computer scientists to hobbyist developers have been hassled, interfered with and forced to pay legal fees and royalties sometimes reaching into the hundreds of millions of dollars on the basis of patents that should never have been issued in the first place. This case gives the Supreme Court a chance to reaffirm what its past cases have held for more than a century: that no patent law consistent with the US Constitution can permit the monopolization of abstract ideas.”

SFLC’s brief supports the position that software is unpatentable by showing that software is merely a set of detailed instructions in a language that humans can understand and computers can execute, no more subject to patent monopolization than a mathematical equation or the precise description of a law of physics. Mathematical expressions and facts of nature cannot be patented, as the Supreme Court has repeatedly held since the mid-nineteenth century. SFLC’s brief also shows that software patents hinder innovation in software, and thus run counter to the Constitutional authorization of patents “to promote the progress of science and useful arts.” “Everyone would have been better off if software had never been patented,” Professor Moglen says. “Now the Court can correct the mistakes of the lower courts, talented programmers everywhere will breathe easier as they invent our future, and we will all have better technology at lower prices. That’s the value of keeping ideas free, as in free speech.”

The full brief is available on the Web here

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