Software Freedom Law Center Files Brief with Supreme Court Arguing Against Software Patents

Brief Filed in Microsoft v. AT&T

December 15, 2006

The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software, today filed a brief with the United States Supreme Court arguing against the patenting of software.

In the case Microsoft v. AT&T, the Supreme Court will decide whether U.S. patents can apply to software that is copied and distributed overseas. The Court of Appeals for the Federal Circuit, a specialized patent court known for allowing patents on software and business methods, originally decided in favor of AT&T, expanding the international reach of U.S. software patents. Microsoft appealed, and the Supreme Court agreed to hear the case.

In its brief, SFLC argues that software copied and distributed outside the United States cannot infringe U.S. patents. The brief also argues that the Federal Circuit’s decisions declaring software to be patentable subject matter conflict with Supreme Court precedent and, as such, should be overruled.

“I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft,” said Daniel Ravicher, SFLC Legal Director. “In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.”

In Supreme Court decisions, the explanation for deciding a case is almost always more important than the outcome of the particular case at hand. In this case, the Court’s decision will determine whether U.S. software patents can be used to restrict software development, distribution and use throughout the rest of the world. The ruling may also decide whether software patents are even legally allowed to exist in the United States.

“In contrast to the Federal Circuit, the Supreme Court has maintained limits on patentable subject matter throughout U.S. history,” said Eben Moglen, Executive Director of SFLC. “The Supreme Court has consistently ruled that algorithms and mathematics cannot be patented. Since software is expressed as mathematical algorithms, it should not be patentable.”

Software patents are an important issue for developers and users of Free and Open Source Software. The Software Freedom Law Center, along with other organizations, hosted a conference at MIT and Boston University in November that addressed the legal, economic and social consequences of software patents.

SFLC’s brief is available on the Web at

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