FSF files brief in Bilski case calling on the Supreme Court to eliminate software patents

(See the brief; independent translations of this announcement: Spanish)

BOSTON, Massachusetts, USA — Friday, October 2, 2009 — The Free Software Foundation (FSF) today submitted an amicus curiae brief calling on the Supreme Court to affirm that software ideas are not patentable. After outlining the positive impact that the free software movement and the GNU General Public License (GNU GPL) have had on computer use, the brief explains how software patents are an obstacle and a danger to software developers.

FSF founder Richard Stallman and the free software movement have been campaigning worldwide against software patents since the late 1980s, but the effort in the United States is coming to a head with the Supreme Court now reviewing patentable scope for the first time since 1981’s Diamond v. Diehr case.

End Software Patents (ESP) executive director Ciaran O’Riordan explained, “Every software patent is a restriction on software developers and users of computers, and there are currently 200,000 software patents in the USA. As well as being an unjust restriction on a common household tool, time has now also proven software patents to be an economic failure and a hindrance to the progress of the useful arts. This means they’ve failed their constitutional mandate and have no legal legitimacy. The Supreme Court has itself never authorized the patenting of software ideas, so there’s real hope that this problem can finally be solved.

O’Riordan credited the swpat.org wiki contributors for their help, saying, “Much of the material for this brief came from our publicly editable wiki at swpat.org. For each point we decided to make, we used the wiki to find references and quotes and further information — and I hope other brief drafters found it useful too. Contributing to this resource is a great way for people to get involved in the campaign — the Bilski case will continue for months, and there is still much work to be done to eliminate software patents worldwide.

The 44-page brief further details the commonly noted outrageous risks and expenses imposed by patents, which leave individuals and small projects particularly vulnerable, but also highlights the deeper injustices: “This inability to participate on an even basis amplifies the problem, but there is also a deeper problem: losing control of one’s computing in his or her daily life. Because individuals can write software, they can help themselves and solve their own problems. Given that software development includes common activities such as making a webpage, the freedom to use a computer as you see fit for your daily life is a fundamental form of expression, just as using a pen and paper is. … In the context of writing an email reader, a word processor, or an image viewer, being blocked from reading, modifying, or writing in the required data format is equivalent to being banned from writing a functional program for that task.”

In April of 2008, FSF worked with the End Software Patents (ESP) campaign to file an amicus curiae brief in the Court of Appeals for the Federal Circuit’s (CAFC) hearing of the in re Bilski case. In October 2008, the CAFC issued its ruling, which gutted patents on program ideas running on general-purpose computers. In June of this year, the Supreme Court decided to review the case.

The full text of the brief is available online at http://endsoftpatents.org/amicus-bilski-2009.

More information about the briefs which have been submitted is available at http://en.swpat.org/wiki/Bilski_v._Kappos_amicus_briefs.