\documentclass[12pt,twoside]{brief}
\usepackage{newcent}
\supremecourt
\renewcommand{\indent}{\hspace*{\parindent}}
\begin{document}

\thispagestyle{empty}
\newcommand{\casecaption}{
  \begin{center}
  {
  No.~13-298 \\
  \rule{\textwidth}{1mm} \\ \rule[2.2ex]{\textwidth}{0.4mm} \\
  \vspace{-0.4ex}
  {\scshape In The} \\
  \textbf{Supreme Court of the United States} \\
  \rule{10em}{0.2mm} \\[1ex]
  \textsc{ALICE CORPORATION PTY.~LTD.,} \\
  \hspace*{\fill}\emph{Petitioner,} \\
  \vspace{-1.3ex}
  v.~\\
  \vspace{1.3ex}
  \textsc{CLS BANK INTERNATIONAL \\
  AND CLS SERVICES LTD.,} \\
  \hspace*{\fill}\emph{Respondents.}} \\[0.1ex]
  \rule[0.5ex]{10em}{0.2mm} \\
  \textbf{On Writ of Certiorari to the \\
    United States Court of Appeals \\
  for the Federal Circuit} \\
  \rule{10em}{0.2mm} \\[1ex]
  BRIEF OF SOFTWARE FREEDOM LAW CENTER,\\
   FREE SOFTWARE FOUNDATION,\\
  AND OPEN SOURCE INITIATIVE AS\\
  \textit{AMICI CURIAE} IN SUPPORT OF RESPONDENTS \\
  \rule{10em}{0.2mm} \\
  \end{center}
}
\newcommand{\counsel}{
%  \begin{list}{}{\setlength\topsep{-3ex}\setlength\leftmargin{.5\textwidth}}
  \begin{list}{}{\setlength\topsep{-3.75ex}\setlength\leftmargin{.40\textwidth}}
  \item \textsc{Eben Moglen} \\
  \hspace*{2em}\emph{Counsel of record}\\
  \textsc{Mishi Choudhary}\\
  \textsc{Jonathan D.~Bean} \\
 Software Freedom Law Center \\
 1995 Broadway, 17$^{th}$ Floor \\
 New York, New York 10023\\
 moglen@softwarefreedom.org \\
 212-461-1900 \\ 
 \end{list}
\noindent  {February 27, 2014} \\
}

\casecaption
\counsel
\rule{\textwidth}{0.4mm} \\ \rule[1.2ex]{\textwidth}{1mm}

\newpage
\thispagestyle{empty}
\part*{\textbf{Question Presented}}
Whether claims to computer-implemented in\-ventions---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.~{\S}~101 as
interpreted by this Court?

\newpage
\pagenumbering{roman}
\tableofcontents

%
% _______TABLE OF AUTHORITIES_________
%
\newpage
\part*{\textbf{Table of Authorities}}
\addcontentsline{toc}{section}{\textsc{Table of Authorities}}

%
%----CASES
%
\vspace {1ex}\noindent \emph {\relax \fontsize {14.4}{18}\selectfont Cases}\\[.75ex]

\noindent \emph{Bilski} v.~\emph{Kappos}, \\*
\indent 130 S.~Ct.~3218 (2010) \dotfill \emph{passim}\\

\noindent \emph{Cochrane} v.~\emph{Deener}, \\*
\indent 94 U.S.~780 (1877) \dotfill 4, 6\\

\noindent \emph{Diamond} v.~\emph{Chakrabarty}, \\*
\indent 447 U.S.~303 (1980) \dotfill 5, 7\\

\noindent \emph{Diamond} v.~\emph{Diehr}, \\*
\indent 450 U.S.~175 (1981) \dotfill \emph{passim}\\

\noindent \emph{Eldred} v.~\emph{Ashcroft}, \\*
\indent 537 U.S.~186 (2003) \dotfill 4, 19--21\\

\noindent \emph{Funk Brothers Seed Company} v.~\emph{\\*
\indent Kalo Inoculant Company},\\*
\indent 333 U.S.~127 (1948) \dotfill 6, 8\\

\noindent \emph{Gottschalk} v.~\emph{Benson}, \\*
\indent 409 U.S.~63 (1972) \dotfill \emph{passim}\\

\noindent \emph{Harper \& Row, Publishers} v.~\emph{\\*
\indent Nation~Enterprises}, \\*
\indent 471 U.S.~539 (1985) \dotfill 21\\

\noindent \emph{Le Roy} v.~\emph{Tatham}, \\*
\indent 55 U.S.~(14 How.)~156 (1853) \dotfill 10\\

\noindent \emph{Mayo Collaborative Services } v.~\emph{\\*
\indent Prometheus Laboratories, Inc.}, \\*
\indent 132 S.~Ct.~1289 (2012) \dotfill 4, 7, 9, 10\\

%\noindent \emph{Metabolite Labs,} v.~\emph{Laboratory Corporation \\*
%\indent of American Holdings},\\ *
%\indent 370 F.3d~1354 (Fed.~Cir.~2004) \dotfill {TBD}\\

%\noindent \emph{MGM Studios, Inc.~v.~Grokster, Ltd.},\\
%\indent 545 U.S.~913 (2005) \dotfill {TBD}\\

\noindent \emph{Microsoft} v.~\emph{AT\&T}, \\*
\indent 550 U.S.~437 (2007) \dotfill 11\\

\noindent \emph{O'Reilly} v.~\emph{Morse}, \\*
\indent 56 U.S.~(15 How.)~62 (1854) \dotfill 7--10\\

\noindent \emph{Parker} v.~\emph{Flook}, \\*
\indent 437 U.S.~584 (1978) \dotfill \emph{passim}\\

\noindent \emph{Rubber-Tip Pencil} v.~\emph{Howard}, \\*
\indent 87 U.S.~(20 Wall.)~498 (1874) \dotfill {11}\\

%\noindent \emph{SEB SA} v.~\emph{Montgomery Ward Co.~Inc.},\\ 
%\indent 549 F.3d 1360 (Fed.~Cir.~2010) \dotfill {TBD}\\

%
%----CONSTITUTIONS, STATUTES, AND RULES
%
\vspace {1ex}\noindent \emph {\relax \fontsize {14.4}{18}\selectfont Constitutions, Statutes, and Rules}\\[.75ex]

\noindent U.S.~Const., art.~I, {\S} 8, cl.~8 \dotfill 12, 19\\

\noindent U.S.~Const., amend.~I \dotfill 12, 19--22\\

%\noindent 26 U.S.C.~{\S} 501(c)(3) \dotfill {TBD}\\

\noindent 35 U.S.C.~{\S} 101 \dotfill \emph{passim}\\

%\noindent 35 U.S.C.~{\S} 271(b) \dotfill {TBD}\\

\noindent Sup.~Ct.~R.~37.6 \dotfill 1\\

%
% --- OTHER AUTHORITIES
%
\pagebreak
\vspace {1ex}\noindent \emph {\relax \fontsize {14.4}{18}\selectfont Other Authorities}\\[.75ex]

\noindent  Brian W.~Kernighan and Dennis M.~Ritchie, \\*
\indent \emph{The C Programming Language} \\*
\indent (Prentice Hall 1978) \dotfill 21, 22\\

\noindent ``To Promote the Progress of .~.~.~Useful Arts,'' \\*
\indent Report of the President's Commission on \\*
\indent the Patent System (1966) \dotfill 18, 19\\

\newpage
\pagenumbering{arabic}
\begin{center}
  \part*{\textbf{Interest of Amici Curiae}}
  \addcontentsline{toc}{section}{\textsc{Interest of Amici Curiae}}
  \section*{Software Freedom Law Center}
\end{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.

\vspace{3ex}
\section*{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}

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.

\part*{\textbf{Summary of Argument}}
\addcontentsline{toc}{section}{\textsc{Summary of Argument}}

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 \S 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 \S 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.

\part*{\textbf{Argument}}
\addcontentsline{toc}{section}{\textsc{Argument}}

\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}

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

\begin{quote}
[A]lthough the text of \S 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 \S 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 \S 101. Though the Court has
repeatedly cautioned that the ``machine or transformation'' test is
not the \emph{sole} expression of the limits of \S 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}

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
\S 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 % The flook quote is an interpertation of the cited portion of Funk Brothers. See also seemed like the best option here.
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 \S
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 \S 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}

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 \S
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 \S 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).\\ % Citing Benson and Flook

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, \S 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 \S 101.

\subsection{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}

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}

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}

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). % cite is gegimani, LR article

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}

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 % Cites to brief for respondent itself quoting a treatise
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 \S 101 that automatically avoids conflict
with the First Amendment. If the ``machine or transformation'' test
is \emph{not} the exclusive delimitation of \S 101 as applied to
computer-implemented inventions, what alternative proposal do
petitioners and their \emph{amici} advance to avoid First Amendment
problems?


\part*{\textbf{Conclusion}}
\addcontentsline{toc}{section}{\textsc{Conclusion}}

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.
\newpage
For the foregoing reasons, the decision below should be affirmed.

\vspace{3ex}
\begin{list}{}{\setlength\topsep{-3ex}\setlength\leftmargin{.4\textwidth}}
\item Respectfully submitted,\\[1.4ex]
\end{list}
\counsel

\end{document}
