\section{Question Presented}\label{question-presented}

Whether claims to computer-implemented inventions--including claims to
systems and machines, processes, and items of manufacture--are directed
to patent-eligible subject matter within the meaning of 35 U.S.C.~§101
as interpreted by this Court?

\section{Software Freedom Law Center}\label{software-freedom-law-center}

Much of the world's most important and most commercially significant
software is distributed under copyright licensing terms that give
recipients freedom to copy, modify and redistribute the software (``free
software'').\footnote{Pursuant to Sup.~Ct.~R.~37.6, amici note that no
  counsel for a party authored this brief in whole or in part, and no
  counsel or party made a monetary contribution intended to fund the
  preparation or submission of this brief. No persons other than amici
  curiae and their counsel made a monetary contribution to its
  preparation or submission. Petitioners and Respondents have consented
  to the filing of this brief through blanket consent letters filed with
  the Clerk's Office.} One could not send or receive e-mail, surf the
World Wide Web, perform a Google search or take advantage of many of the
other benefits offered by the Internet without free software. Indeed,
this brief was written entirely with free software word processors,
namely GNU Emacs and LaTeX, each of which are not just competitive with
or superior to non-free software programs, but which also provide their
users with the freedom to improve the program to fit their needs and
reflect their desires.

The Software Freedom Law Center (``SFLC'') is a not-for-profit legal
services organization that provides legal representation and other
law-related services to protect and advance free software. SFLC provides
pro bono legal services to non-profit free software developers and also
helps the general public better understand the legal aspects of free
software. SFLC has an interest in this matter because the decision of
this Court will have a significant effect on the rights of the free
software developers and users SFLC represents. More specifically, SFLC
has an interest in ensuring that limits are maintained on the reach of
patent law so that free software development is not unreasonably and
unnecessarily impeded.

\section{Free Software Foundation}\label{free-software-foundation}

This brief is filed on behalf of the Free Software Foundation, a
charitable corporation with its main offices in Boston, Massachusetts.
The Foundation believes that people should be free to study, share and
improve all the software they use and that this right is an essential
freedom for users of computing. The Foundation has been working to
achieve this goal since 1985 by directly developing and distributing,
and by helping others to develop and distribute, software that is
licensed on terms that permit all users to copy, modify and redistribute
the works, so long as they give others the same freedoms to use, modify
and redistribute in turn. The Foundation is the largest single
contributor to the GNU operating system (used widely today in its
GNU/Linux variant for computers from PCs to supercomputer clusters). The
Foundation's GNU General Public License is the most widely used free
software license, covering major components of the GNU operating system
and hundreds of thousands of other computer programs used on hundreds of
millions of computers around the world. The Foundation strongly rejects
the use of patent law to control the making and distribution of
software. It believes that the misapplication of patent law to computer
software prevents the development, distribution and use of free/libre
software, and therefore endangers users' control of their digital
activities.

\section{Open Source Initiative}\label{open-source-initiative}

The Open Source Initiative (``OSI'') is a not-for-profit organization
that supports and promotes the open source movement. Open source is a
development method for software that harnesses the power of distributed
peer review and development to build better software. The resulting
software is globally available, and provides more user flexibility and
reliability, at lower cost than traditional, centralized software
development methods. Founded in 1998 by some of the people who coined
the term ``open source'', OSI promotes open source development,
advocates for the open source community, and maintains the Open Source
Definition that helps determine whether a project is open source. OSI's
membership is global, and includes individual developers, affiliated
open source projects, and corporate sponsors who participate in and
benefit from open source. OSI has an interest in this matter because the
decision of this Court will have a significant effect on the rights and
activities of the developers and users who make up the open source
movement. In particular, OSI has an interest in limiting the reach of
patent law so that open source software development is not unreasonably
impeded.

As this Court has held consistently, any subject matter that risks
pre-empting free use of laws of nature, algorithms, or abstract ideas is
not eligible for patenting. This Court has repeatedly stated that, in
determining the patentability of processes, the presence of a particular
machine or apparatus or transformation of matter is a strong clue that
the process claimed is patent-eligible under §101. \emph{Cochrane}
v.~\emph{Deener}, 94 U.S.~780, 788 (1877); \emph{Gottschalk}
v.~\emph{Benson}, 409 U.S.~63, 70--71 (1972); \emph{Parker}
v.~\emph{Flook}, 437 U.S.~584, 588 n.~9 (1978); \emph{Diamond}
v.~\emph{Diehr}, 450 U.S.~175, 184 (1981); \emph{Bilski}
v.~\emph{Kappos}, 130 S.~Ct.~3218, 3227 (2010); \emph{Mayo Collaborative
Services}~v.~\emph{Prometheus Laboratories, Inc.}, 132 S.~Ct.~1289, 1303
(2012).

The present case raises the question how to determine patent eligibility
for computer-implemented inventions only, a narrower category of patent
applications than those considered in \emph{Bilski}. In this narrower
category of cases, the Court should adopt the ``machine or
transformation'' test as the bright line. In the more than sixty years
since the adoption of the 1952 Patent Act amendments, the Court has
never faced a patent application for a computer-implemented invention
that failed the ``machine or transformation'' test and yet fell within
the scope of §101. Speculation about such possible cases should not
prevent the clarity that adoption of a bright-line test would bring.

The ``built-in'' accommodation between copyright law and the First
Amendment, \emph{see} \emph{Eldred} v.~\emph{Ashcroft}, 537 U.S. 186,
219 (2003), is present, but in a different form, in patent law. In
\emph{Eldred}, the Court held that the idea/expression distinction and
the fair use principle are constitutionally required to prevent
collision between copyright and the First Amendment. The same required
function is performed in patent law by the exemption of all subject
matter that pre-empts free use of laws of nature, algorithms and
abstract ideas. In cases involving computer software, the risk of
creating statutory monopolies on ideas is particularly high, because
computer programs, as the Court has held, are abstract ideas without
physical embodiment. The Court must construe the Patent Act to avoid
constitutional infirmity, and it does so in this context by applying the
``machine or transformation'' test to such applications seeking
statutory monopolies for computer-implemented inventions.

\section{Processes Are Not Patentable If They Are Implemented Solely
Through Computer Software, Without a Specialized Machine, or
Transformation of Matter, As This Court Has Uniformly
Held}\label{processes-are-not-patentable-if-they-are-implemented-solely-through-computer-software-without-a-specialized-machine-or-transformation-of-matter-as-this-court-has-uniformly-held}

As Justice Breyer noted in \emph{Bilski}, 130 S.~Ct., at 3258:

\begin{quote}
{[}A{]}lthough the text of §101 is broad, it is not without limit.
\ldots{} In particular, the Court has long held that `{[}p{]}henomena of
nature, though just discovered, mental processes and abstract
intellectual concepts are not patentable' under §101, since allowing
individuals to patent these fundamental principles would `wholly
pre-empt' the public's access to the basic tools of scientific and
technological work.
\end{quote}

(internal citations omitted) (quoting \emph{Benson}, 409 U.S., at 67,
72) (citing ~\emph{Diehr}, 450 U.S., at 185; \emph{Diamond}
v.~\emph{Chakrabarty}, 447 U.S.~303, 309 (1980)).

In keeping with this principle, the Court has recognized in an unbroken
series of cases extending over more than a century that patents should
not be allowed to preempt the fundamental tools of discovery which
should remain ``free to all \ldots{} and reserved exclusively to none.''
\emph{Funk Brothers Seed Company} v.~\emph{Kalo Inoculant Company}, 333
U.S.~127, 130 (1948). Patent eligibility at the constitutional limit
cannot be made the handmaiden of a clever draftsman. The test
articulated for patentability must take no account of the terms in which
claims are posed. The Court has stated that ``{[}t{]}ransformation and
reduction of an article to a different state or thing is the clue to the
patentability of a process claim that does not include particular
machines.'' \emph{Benson}, 409 U.S., at 71 (internal quotation marks
omitted). Summarizing this history, \emph{Flook} remarked that the Court
had ``only recognized a process as within the statutory definition when
it either was tied to a particular apparatus or operated to change
materials to a `different state or thing.'\,'' 437 U.S., 588 n.~9
(quoting \emph{Cochrane} v.~\emph{Deener}, 94 U.S, at 787--88). In
\emph{Diamond} v.~\emph{Diehr}, 450 U.S., at 184, this Court once again
applied the ``machine or transformation'' test regarding the
patentability of processes under §101. Though the Court has repeatedly
cautioned that the ``machine or transformation'' test is not the
\emph{sole} expression of the limits of §101, \emph{Bilski}, 130 S.~Ct.,
at 3227 \emph{Benson}, 409 U.S., at 71, the \emph{Flook} Court's
generalization remains accurate: this Court has never approved the
patentability of a computer-implemented process which involved neither
special apparatus nor transformation of matter. This Court should now
hold, in keeping with its unbroken precedents, that computer software,
in particular, cannot be the sole component of a patentable process. To
patent a process implemented in computer software, the invention claimed
must additionally include either a special purpose apparatus, not merely
a general purpose computer to execute the software, or a transformation
of matter.

\subsection{Historically, Any Subject Matter That Pre-Empts the Free Use
of Laws of Nature, Abstract Ideas, or Algorithms is
Unpatentable}\label{historically-any-subject-matter-that-pre-empts-the-free-use-of-laws-of-nature-abstract-ideas-or-algorithms-is-unpatentable}

Since before the Civil War, this Court has consistently made it clear
that subject matter which would have the practical effect of
monopolizing laws of nature, abstract ideas or mathematical algorithms
is ineligible for patent protection. \emph{O'Reilly} v.~\emph{Morse}, 56
U.S.~(15 How.)~62, 113 (1854); \emph{Gottschalk} v.~\emph{Benson}, 409
U.S.~63; \emph{Parker} v.~\emph{Flook}, 437 U.S.~584; \emph{Diamond}
v.~\emph{Chakrabarty}, 447 U.S.~303; \emph{Diamond} v.~\emph{Diehr}, 450
U.S.~175; \emph{Bilski} v.~\emph{Kappos}, 130 S.~Ct.~3218; \emph{Mayo
Collaborative Services}~v.~\emph{Prometheus Laboratories, Inc.}, 132
S.~Ct.~1289.

In \emph{O'Reilly} v.~\emph{Morse}, the Court rejected Samuel Morse's
claim to the use of ``electromagnetism, however developed, for making or
printing intelligible characters, signs or letters, at any distances.''
56 U.S., at 112 (internal quotation marks omitted). The Court said:

\begin{quote}
If this claim can be maintained, it matters not by what process or
machinery the result is accomplished. For aught that we now know, some
future inventor, in the onward march of science, may discover a mode of
writing or printing at a distance by means of the electric or galvanic
current, without using any part of the process or combination set forth
in the plaintiff's specification. His invention may be less complicated
-- less liable to get out of order -- less expensive in construction,
and in its operation. But yet, if it is covered by this patent, the
inventor could not use it, nor the public have the benefit of it,
without the permission of this patentee.
\end{quote}

\emph{Id.}~at 113.

In \emph{Benson}, this Court considered the claim to a method for
converting numerical information from binary-coded decimal numbers into
pure binary numbers, for use in programming conventional general-purpose
digital computers. The Court concluded that ``{[}t{]}he mathematical
formula involved here has no substantial practical application except in
connection with a digital computer, which means that if the judgment
below is affirmed, the patent would wholly preempt the mathematical
formula involved and in practical effect would be a patent on the
algorithm itself.'' 409 U.S., at 71--72. Accordingly the claims were
held ineligible under §101.

In \emph{Parker} v.~\emph{Flook}, the Court held that to be eligible for
patent protection, ``{[}t{]}he process itself, not merely the
mathematical algorithm, must be new and useful.'' 437 U.S., at 591;
\emph{see also}, \emph{Funk Brothers}, 333 U.S., at 130. The Court
further stated in \emph{Flook} that it is ``incorrect{[}{]} {[}to{]}
assume{[}{]} that if a process application implements a principle in
some specific fashion, it automatically falls within the patentable
subject matter of §101.'' 437 U.S., at 593. This Court explained that
such an assumption is based on an impermissibly narrow interpretation of
its precedents, including specifically \emph{Benson}, and is
``untenable'' because ``{[}i{]}t would make the determination of
patentable subject matter depend simply on the draftsman's art, and
would ill serve the principles underlying the prohibition against
patents for `ideas' or phenomena of nature.'' \emph{Id}.

In alignment with \emph{Benson} and \emph{Flook}, this Court's decision
in \emph{Diamond} v.~\emph{Diehr} held that structures or processes
must, when considered as a whole, perform functions intended to be
covered by patent law in order to be eligible for patent protection. 450
U.S., at 192.

In rejecting the patentability of a ``business method'' implemented in
computer software, the Court in \emph{Bilski} stated that
``{[}A{]}llowing {[}the claims{]} would pre-empt use of this approach in
all fields, and would effectively grant a monopoly over an abstract
idea.'' 130 S.~Ct., at 3231. The Court also held that such claims cannot
be made patent eligible by ``limiting an abstract idea to one field of
use or adding token post-solution components,'' thereby affirming the
rejection of the claims under §101. \emph{Id}.

More recently, in \emph{Mayo}, while rejecting the claimed processes as
``routine, conventional activity previously engaged in by researchers in
the field,'' the Court stated that its decisions

\begin{quote}
warn us against interpreting patent statutes in ways that make patent
eligibility `depend simply on the draftsman's art' without reference to
the `principles underlying the prohibition against patents for
{[}natural laws{]}.' \emph{Flook}, 437 U.S., at 593. They warn us
against upholding patents that claim processes that too broadly preempt
the use of natural law. \emph{Morse}, 56 U.S., at 112--20. And they
insist that a process that focuses upon the use of a natural law also
contain other elements or a combination of elements.
\end{quote}

132 S.~Ct., at 1294.

\emph{Benson}, \emph{Flook}, \emph{Diehr}, and the other decisions of
this Court regarding patentable subject matter consistently establish
that the inquiry into whether subject matter is eligible for patenting
is one of substance, not form.

This substantive standard ensures that skilled patent draftsmanship is
not capable of overcoming one of the core doctrines of patent law
recognized by this Court for more than 150 years: that ``{[}a{]}
principle, in the abstract, is a fundamental truth; an original cause; a
motive; these cannot be patented, as no one can claim in either of them
an exclusive right.'' \emph{Le Roy} v.~\emph{Tatham}, 55 U.S.~(14
How.)~156, 175 (1853).

\subsection{Computer Programs are Algorithms for Computers to Execute
Written in Human-Readable Terms. Standing Alone, Without Specialized
Machinery or the Transformation of Matter, They Are Not Patentable, As
This Court Has Repeatedly
Held}\label{computer-programs-are-algorithms-for-computers-to-execute-written-in-human-readable-terms.-standing-alone-without-specialized-machinery-or-the-transformation-of-matter-they-are-not-patentable-as-this-court-has-repeatedly-held}

This Court has repeatedly addressed the issue whether software is
patentable subject matter, and has never found software standing on its
own an appropriate subject of patent monopoly, no matter how the claims
have been drafted.

In \emph{Microsoft} v.~\emph{AT\&T}, 550 U.S.~437 (2007), the Court
stated that software program code is an idea without physical embodiment
and is merely information--a detailed set of instructions. Such abstract
ideas without physical embodiment cannot be the subject of a statutory
patent monopoly because, ``{[}a{]}n idea of itself is not patentable.''
\emph{Rubber-Tip Pencil} v. \emph{Howard}, 87 U.S. (20 Wall.) 498, 507
(1874).

A computer program, no matter what its function, is nothing more or less
than a collection of abstract ideas comprising one or more algorithms.
It is not conceptually different from a list of steps written down with
pencil and paper for execution by a human being. In fact, computer
software in source code form is \emph{precisely} a list of steps written
for the reading of human beings, who can learn from, and fix errors in,
the computer program represented. Further, just as claiming fifty--or
even a thousand--laws of nature is no more patentable than claiming a
single law of nature, no form of software, regardless how many
algorithms or formulas it comprises, is patentable. In no uncertain
terms, this Court in \emph{Benson}, 409 U.S., at 71--73, held that
software, which contains and upon command executes algorithms that solve
mathematical problems through the use of a computer, is not patentable
under §101.

Thus, as the Court's precedents unambiguously show, software standing
alone, without the presence of a special purpose machine or the act of
transforming a particular article into a different state or thing, is
merely information, a representation of an algorithm or algorithms, and
not a ``process'' within the meaning of §101.

This Court's decision in \emph{Diamond} v.~\emph{Diehr} is not to the
contrary. It followed the teaching of \emph{Benson}, applied in
substance the ``machine or transformation'' test, and determined that
the invention before the Court was not substantially the software, but
rather the totality of an ``industrial process for the molding of rubber
products,'' which was undeniably included within the realm of patentable
subject matter. 450 U.S., at 191--93. Had the applicant sought to claim
the software used in that process by itself, however, the Court would
surely have found it to be unpatentable subject matter just as it had in
\emph{Benson}. As the \emph{Diehr} Court observed:

\begin{quote}
{[}W{]}hen a claim recites a mathematical formula (or scientific
principle or phenomenon of nature), an inquiry must be made into whether
the claim is seeking patent protection for that formula in the abstract.
A mathematical formula as such is not accorded the protection of patent
laws, and this principle cannot be circumvented by attempting to limit
the use of the formula to a particular technological environment.
\end{quote}

450 U.S., at 191 (internal citations omitted). This result--which makes
software describing a portion of the solution to a practical problem
unpatentable on its own, outside the real-world context of the problem
and its solution--is not only in accord with the rest of this Court's
patent jurisprudence, it is also the best way to protect innovation in
software, and the only way that fully comports with both Article I, §8
and the First Amendment.

Thus, this Court's precedent repeatedly sets out that software, which is
nothing more than a set of instructions--an algorithm--to be performed
by a computer in order to solve some technical or mathematical problem,
is subject matter that is not patentable under §101.

\subsection{The ``Machine or Transformation'' Test is the Correct and
Complete Test of Patent Eligibility for Computer-Implemented
Inventions}\label{the-machine-or-transformation-test-is-the-correct-and-complete-test-of-patent-eligibility-for-computer-implemented-inventions}

This Court held in \emph{Bilski} v.~\emph{Kappos} that the ``machine or
transformation'' approach is not the sole determinative measure of the
patent eligibility of all processes. 130 S.~Ct., at 3227. But the issue
in the present case is narrower than that posed to the Court in
\emph{Bilski}. The question presented here concerns the patentability of
computer software that duplicates the effects of a process previously
undertaken without the benefit of computer assistance. No special
apparatus or transformation of matter having been presented as part of
the claims, the subject matter is unpatentable. In this narrower domain
it is appropriate for the Court, in line with its prior decisions, to
hold that the ``machine or transformation'' test is the exclusive test
for patent eligibility of computer-implemented inventions.

The Court in \emph{Bilski} said that ``there are reasons to doubt'' that
the ``machine or transformation'' approach can be the exclusive test for
the patentability of ``inventions in the Information Age.'' 130 S.~Ct.,
at 3227. But when the question is narrowed to whether software standing
alone should be patentable, there is little reason indeed for doubt. The
Court has never so far faced an instance in which the ``machine or
transformation'' test failed to distinguish between patent eligible and
ineligible subject matter of this kind. Far from being a source of
uncertainty, as the \emph{Bilski} Court suggested it might be,
\emph{Id.}, the ``machine or transformation'' test would provide
substantial certainty now lacking, by reinforcing the teaching of the
unbroken precedent of 150 years.

No doubt the pace of change in the area of information technology is
rapid. As we show below, the real lesson of contemporary technological
development, however, is that patenting has had no positive effect on
innovation in software. Uncertainty about what can be patented, on the
other hand, has given rise to enormously wasteful litigation. But
whatever the pace of innovation, it is unlikely to disclose what has not
yet appeared since the beginning of the Information Age: a case in which
software standing alone, that fails the ``machine or transformation''
test, nonetheless is patentable subject matter. In the unlikely event
that such a \emph{rara avis} is observed in future, the Court can modify
or add to the test. In the meantime, the advantages of certainty that
would accrue from the adoption of a clear, bright-line test that cannot
be defeated by mere cleverness of draftsmanship would far outweigh the
speculative concerns expressed by the Court in \emph{Bilski}.

\section{Adhering to the Court's Previous Decisions on Patentability of
Software Standing Alone Does Not Imperil the Pace of Software
Innovation}\label{adhering-to-the-courts-previous-decisions-on-patentability-of-software-standing-alone-does-not-imperil-the-pace-of-software-innovation}

The nature of software, like mathematics or basic scientific research,
is that innovation is best produced by free sharing. History shows that
innovation in software over the last generation has occurred first in
communities of free sharing, where patenting has been systematically
discouraged.

\subsection{Innovation in Software, Like Innovation in Mathematics, is
Encouraged by Scientific Processes of Free Sharing and Open Publication,
Not by Granting State-Issued Monopolies on
Ideas}\label{innovation-in-software-like-innovation-in-mathematics-is-encouraged-by-scientific-processes-of-free-sharing-and-open-publication-not-by-granting-state-issued-monopolies-on-ideas}

If mathematics were patentable, there would be less mathematical
innovation. Only those who were rich enough to pay royalties, or who
benefited from subsidization by government, or who were willing to sign
over the value of their ideas to someone richer and more powerful than
themselves, would be permitted access to the world of abstract
mathematical ideas. Theorems build upon theorems, and so the
contributions of those who could not pay rent--and all the further
improvements based upon those contributions--would be lost.

The principle that innovation is made possible by the free exchange of
ideas is not recent, and is not limited to software. Indeed, our
constitutional system of free expression since Thomas Jefferson is based
on the recognition that control of ideas by power has never produced
more ideas than their free and unrestricted circulation. The history of
western science since the 17th century is one long testament to this
truth, and it is that very history which gave rise to the patent system,
whose exclusion of ``abstract ideas,'' ``laws of nature,'' and
``algorithms'' is as much a recognition of the principle as is the basic
constitutional policy of offering temporary legal benefits in return for
prompt and complete disclosure of technological discoveries to the
public.

\subsection{The History of the Free Software Movement and the Worldwide
Adoption of Free and Open Source Software by Industry Shows That
Patenting Software Has Not Contributed to the Important Software
Innovations of the Last
Generation}\label{the-history-of-the-free-software-movement-and-the-worldwide-adoption-of-free-and-open-source-software-by-industry-shows-that-patenting-software-has-not-contributed-to-the-important-software-innovations-of-the-last-generation}

For more than a quarter century, beginning with a few stalwart thinkers
and exponentially increasing in size and influence, a movement to build
computer software by sharing--treating software programming languages
like mathematical notation, for the expression of abstract ideas to be
studied, improved, and shared again--has revolutionized the production
of software around the world. The ``free software movement,'' and the
developers of ``open source software'' (collectively described
hereinafter as ``FLOSS developers'') believe, like this Court, that
computer software expresses abstract ideas. FLOSS developers therefore
conclude that the ideas themselves will grow best if left most free to
be learned and improved by all. Their conviction has been shared by
hundreds of thousands--soon millions--of programmers around the world,
who have devoted their skills to making new and innovative software
through the social process that for centuries has been the heart of
Western science: ``share and share alike.''

FLOSS has become the single most influential body of software around the
world. In the more than twenty years of its existence, FLOSS has taken
the world by storm and has driven the majority of the world's
technological advancement in computer programming. FLOSS lives under the
hood of it all--from desktops and servers, to laptops, netbooks,
smartphones, and ``the cloud.'' Linux, distributed under the GNU General
Public License of the Free Software Foundation, is the operating system
kernel in devices such as mobile phones, networking equipment, medical
devices, and other consumer electronics. Android, which relies on Linux
and includes the Java programming language and other software under the
Apache Software Foundation's ALv2 license, currently has far and away
the largest market share in smartphone operating system software. There
is no major or minor computer hardware architecture, no class of
consumer electronics, no form of network hardware connecting humanity's
telephone calls, video streams, or anything else transpiring in the
network of networks we call ``the Internet'' that doesn't make use of
FLOSS. The most important innovations in human society during this
generation, the World Wide Web and Wikipedia, were based on and are now
dominated by free software and the idea of free knowledge sharing it
represents.

Given the widespread use and availability of enterprise applications
running on GNU/Linux in ``the cloud,'' FLOSS presently provides the
infrastructure at the frontier of computing in society. Big Data
analytics rely heavily on FLOSS, such as the Hadoop project of the
Apache Software Foundation.

The major technologies of the Web, from its beginning, have been
embodied in software without patent restrictions. In the early 1990s,
CERN, the European Organization for Nuclear Research, committed the
Web's fundamental technologies, including initial web-serving and
web-browsing programs, to the public domain. The flexibility and
sophistication of the Web we use today depends on freely available
scripting languages such as Perl and PHP, invented by FLOSS developers
who deliberately did not seek patent monopolies for them. From 2000, the
World Wide Web Consortium (W3C), which advances and standardizes the
technology of the Web, has required its recommended technologies in its
standards to be available royalty free with respect to all patent claims
of the companies and parties participating in standards-making.

This explosion of technical innovation has occurred for two primary
reasons. First, the principal rule of free software, the sharing of
computer program source code, has allowed young people around the world
to learn and to improve their skills by studying and enhancing real
software doing real jobs in their own and others' daily lives. Statutory
monopolies on ideas expressed in computer programs would have prevented
this process from occurring. Second, by creating a ``protected commons''
for the free exchange of ideas embodied in program source code without
rent-seeking by parties holding state-granted monopolies, FLOSS has
facilitated cooperative interactions among competing firms. Google,
Facebook, Twitter and other information services used by billions of
individuals worldwide could not exist without FLOSS and the
collaboration it has spawned.

The FLOSS developers and projects that comprise this world-wide movement
generally do not own any patents, not only because they have no
resources to file for state-granted monopolies, but also because the
monopolization of ideas contradicts their fundamental values.

This Court has recognized the growth and innovation in the software
industry in the absence of patent protection. In \emph{Benson}, the
Court noted that ``\,`the creation of programs has undergone substantial
and satisfactory growth in the absence of patent protection and that
copyright protection for programs is presently available.'\,'' 409 U.S.,
at 72 (quoting ``To Promote the Progress of \ldots{}Useful Arts,''
Report of the President's Commission on the Patent System (1966)). In
\emph{Diehr}, the Court subsequently observed that
``{[}n{]}otwithstanding fervent argument that patent protection is
essential for the growth of the software industry, commentators have
noted that `this industry is growing by leaps and bounds without
it.'\,'' 450 U.S., at 217 (internal citations omitted). Mere speculative
doubts about the ``machine or transformation'' test in the ``Information
Age,'' \emph{Bilski}, 130 S.~Ct., at 3227, must give way to the reality
of contemporary information technology. Sharing makes software
innovation. Patenting of software standing alone constitutes the
monopolization of ideas, which not only violates our constitutional
principles but also interferes practically with software innovation. If
this Court holds firmly to its prior course, technological innovation in
software will continue to flourish. Otherwise we can expect more patent
war, less product innovation, and less freedom of thought and invention
in software.

\section{The First Amendment Prohibits Construing the Patent Act to
Permit the Patenting of Abstract
Ideas}\label{the-first-amendment-prohibits-construing-the-patent-act-to-permit-the-patenting-of-abstract-ideas}

This Court held in \emph{Eldred}, 537 U.S., at 219, that the First
Amendment precludes the extension of statutory monopolies to abstract
ideas. As the Court then observed, the near-simultaneous adoption of the
Patent and Copyright Clause and the First Amendment indicates that these
provisions are fundamentally compatible. \emph{Id.} This compatibility,
however, depends on a construction of the patent and copyright acts that
preserves First Amendment principles, including the freedom to
communicate any ``idea, theory, and fact.'' \emph{Id.}

\emph{Eldred} identified two mechanisms in copyright law that are
necessary to accommodate this principle. First, the idea/expression
dichotomy limits copyright's monopoly to an author's expression, leaving
ideas ``instantly available for public exploitation.'' \emph{Id.}
Second, the fair use doctrine allows the public to use even copyrighted
expression for some purposes, ``such as criticism, comment, news
reporting, teaching\ldots{}, scholarship, or research.'' \emph{Id.}~at
220.

Patent statutes, which depend on the same constitutional grant of
authority as copyright statutes, are similarly limited by the First
Amendment. \emph{See} \emph{id.}~at 201 (``Because the Clause empowering
Congress to confer copyrights also authorizes patents, congressional
practice with respect to patents informs our inquiry''). The presence of
an unwavering exemption for abstract ideas reconciles patent law with
the First Amendment in a fashion similar to the idea/expression
dichotomy's crucial role in reconciling copyright and freedom of speech.
The presence of a limiting principle is even more necessary with respect
to patent law than with respect to copyright, because, as the Court
observed in \emph{Eldred}, ``the grant of a patent \ldots{}
prevent{[}s{]} full use by others of the inventor's knowledge.''
\emph{Id.}~at 217 (internal citation omitted). Patents can and do limit
the application of knowledge to produce a new machine or to transform an
article into a different state or thing, but they cannot
constitutionally limit the communication of knowledge or ideas.
\emph{Eldred} teaches that, without this limitation, determining the
scope of patent eligibility in each individual case would raise First
Amendment questions of great difficulty.

Patent law also recognizes no analogue to fair use, previously described
by this Court as the second bulkwark of constitutional harmony between
copyright and free expression. \emph{Id.}~at 219--20. The absence of any
provision for fair use substantially increases the constitutional
difficulty when patents are sought and granted for expressions of
abstract ideas.

Without the ``machine or transformation'' test, dissemination of
software standing alone, in source code form, could result in patent
infringement. This would fatally disturb the ``definitional balance''
between the First Amendment and the Patent Act. \emph{Id.}~at 219
(quoting \emph{Harper \& Row, Publishers} v.~\emph{Nation Enterprises},
471 U.S.~539, 556 (1985)). In its unprocessed source code form, software
is merely the expression of abstract ideas in human language--a
description of a sequence of steps that will produce a particular result
(i.e.~an ``algorithm''). The source code of a program which performs the
steps described in a software patent is distinguishable from the literal
patent only in that it expresses the same steps in a different language.
Therefore, since anyone may copy or publish the actual patent without
infringing, it must also be permissible to communicate its claims in
source code form.

The sharing of source code is also essential to ``scholarship and
comment,'' two categories of speech recognized in \emph{Eldred}, 537
U.S., at 220, and \emph{Harper \&Row}, 471 U.S, at 560, as particular
First Amendment concerns. Computer science textbooks, for example, rely
heavily on source code and pseudo-code to communicate concepts and
describe useful algorithms. \emph{See, e.g.,} Brian W.~Kernighan and
Dennis M.~Ritchie, The C Programming Language (Prentice Hall 1978).
Likewise, computer science students are often required to express their
answers to test questions in a real or hypothetical programming
language. And without the use of source code, it is difficult for
developers to comment on whether an idea can be implemented, to comment
on an algorithm's performance, or to suggest improvements.

The ``machine or transformation'' test serves the purpose of securing
accommodation with the First Amendment by ensuring that patent claims on
computer-implemented inventions cannot be comprised solely of ideas
communicated in computer program code. By requiring a physical
special-purpose apparatus or a material transformation, the test
implements a construction of §101 that automatically avoids conflict
with the First Amendment. If the ``machine or transformation'' test is
\emph{not} the exclusive delimitation of §101 as applied to
computer-implemented inventions, what alternative proposal do
petitioners and their \emph{amici} advance to avoid First Amendment
problems?

The ``machine or transformation'' test evolved over 150 years of this
Court's jurisprudence should be affirmed as the necessary criterion for
the patenting of inventions implemented in software. For the foregoing
reasons, the decision below should be affirmed.

Respectfully submitted,
