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I don't see Red Hat's brief listed, but here are links to most of the amicus briefs filed in this case, along with a short summary of each.

Apparently, the PTO seems to want a bright-line test for patent-eligible business method versus a patent-ineligible mental process.

The discussion at oral argument might shed some light as to the reason why the CAFC voted sua sponte to take this matter en banc.

The following dialogue occurs at 15:20 of the mp3 file obtainable at: http://www.cafc.uscourts.gov/oralarguments/searchscript.asp (type Bilski for Caption)

Judge 1: The way in which the Board . . . presented Bilski to us was with this prayer for guidance. . . . Our examiners need guidance, we need to know how to deal with this situation . . . . Let me ask you this question, Is the opinion in In Re Comiskey enough? Can your examiners now move forward? Are you satisfied in dealing with business-method patents?

Solicitor: Not quite your honor. I say not quite because what I can foresee [are] future disputes and also potentially years of litigation over trying to find the dividing line between what would be a so-called patent-eligible business method versus a so-called patent-ineligible mental process. It just is going to create litigation issue that we dont think needs to be there.

Judge 2: So to cut to the chase, how would you [the Office] have reformulated the test . . . for purposes of explaining both Comiskey and then extrapolating to this case? Solicitor: I think what was just discussed here page 17 [of Comiskey slip opinion, see http://www.cafc.uscourts.gov/opinions/06-1286.pdf ] is a very fair recitation of what the law is where it says. . . . the Supreme Court has held that a claim reciting an algorithm or abstract idea can state statutory subject matter only if, as employed in the process, it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter.

Interesting stuff.

• The Huffington Post
• Fortune (CNN/Money)
• An auction of such patents
• Software patents allowed in the UK (Previously covered on Slashdot

Actually, I think that Romney's specific patent reform proposal (as on Dennis Crouch's Patently-O blog) was the best. He wanted to put people with a clue in charge of the USPTO and appoint judges with a clue to the Federal Circuit. That would go a LONG way to cleaning up the patent system. I really didn't care much for Romney until I read that (and I'm a practicing Mormon). I was actually planning to vote for him in the Texas primaries March 4, but now that he's dropped out, I'm thinking I may go with the Democratic primary and vote for Obama. His "reform" is much more vague, but he seems to be smart and genuine, which is more than I can say for McCain, Clinton or Huckabee.

http://www.patentlyo.com/patent/2007/10/surprise-pto-co.html

Interesting that there were no amicus briefs for the Patent Office.

. . . once big software companies feel threatened rather than empowered by patents, lobbyists will make sure that laws gets passed to protect them.

That bill is already written. It has been introduced in Congress each year since 2005. It will pass eventually.

YIIALBIANYL. GYOGDL. YMNO.

Expect more applications to get section 103 "obviousness" rejections, in the wake of KSR v. Teleflex.

Now ... all Microsoft needs to do (and is doing) is to demand license fees for the use of their patents. This won't affect Linux'es availability for anyone who's willing to pay for a license. How much opposition do you think this will engender in corporate America? How outworldish is it to try to monetise your patents? I have this sinking feeling that most of the industry will shrug it off with "Well ... we knew they're bastards, but that's why they make such a lot of money.", and simply make sure that their Linux distributions are covered by patent license agreements.

Google
Will Google suddenly litigate 150-odd patents (they won't be using the gui or Open Office, just the kernel), or will it consent to pay, say 15$ a copy in licensing fees? Eh? What would you advise Google's CEO if you were in charge of Legal Affairs?

Novell
Novell has signed this patent-agreement, so wouldn't automatically be required to oppose Microsoft when MS asserts its patents. And what about Red-Hat? Will they charge the windmills?

IBM
And IBM? Will they even be a party in the initial legal battles? I mean ... will Microsoft see it as a winning strategy to get into a court battle with IBM about anything they can sue other much smaller companies for first? I'd be surprised.

SUN
And yes, SUN will not take allegations that it's Open Office infringes on Microsoft's patents lying down. But will it take up the cudgels to protect the Linux kernel when it's trying to make a go of Open Solaris? Really?

The little guys
Although I will readily admit that "corporate" use of Linux has helped it along enormously, there are still the "purist" and "hobbyist" distributions. I'm guessing that there are hundreds of small specialised tweaked Linux distributions (ranging from Knoppix to firewalls) brought out by individuals and tiny little companies. That's where Linux shines. And that's where you see the oddball experiments and many of the interesting new developments.

So what are those small guys going to do when they receive a pay-license-fees-or-cease-and-desist nastygram? Their entire assets might just be enough to have a lawyer read the letter and explain to them what it means. My guess is that they will be unable to defend themselves and will quickly fold and withdraw their distros. That alone would be a blow.

The Kernel repositories
And then the Kernel repositories. What are the chances that those will have to take down the infringing portions of their code, if asked? Of course I can't say how likely this might be, as I'm not a lawyer. But Denis Crouch is and his response here ( http://www.patentlyo.com/patent/2007/05/microsoft_ foss_.html) doesn't completely reassure me that Microsoft won't get anywhere.

What does Microsoft have to loose really?
And about other companies giving Micorsoft a hard time ... who likes buying Microsoft? A show of hands please! ... And now, who of you buy Microsoft because it happens to come with the hardware, and it works after a fashion, and you're locked-in anyway?

Really ... what does Microsoft have to loose from some bad publicity when trying to collect licenses on their patents? Somehow I can't even imagine that it would spark off an anti-trust suit, because all the "corporate" Linux distros aren't affected. Microsoft isn't (formally) trying to siderail an opponent, it's trying to get money for patents they own. Well yes, it's lethal to free-as

In the case of public domain materials I can't see how someone could possibly patent, copyright or otherwise stake a claim on them. By definition, they are no longer owned by anyone, save the "the public." A business process that employs the use of them is a separate matter entirely.

They protect two different things and one does not trump the other. Copyright the code. Patent the process.

MR. OLSON [For Microsoft]: The '580 patent is a program, as I understand it, that's married to a computer, has to be married to a computer in order to be patented.
JUSTICE SCALIA: You can't patent, you know, on-off, on-off code in the abstract, can you? MR. OLSON: That's correct, Justice Scalia.
JUSTICE SCALIA: There needs to be a device.
MR. OLSON: An idea or a principle, two plus two equals four can't be patented. It has to be put together with a machine and made into a usable device.

--First, there are a surprising number of people who are not decided on the software patent thing. Many of them work in the Senate and House office buildings. Frankly, those guys were my primary target audience, and I've made sure that at least a few of them get copies of the book, because lobbyists for certain corporations are talking to the same people. It's the least I could do.

[And as you can imagine, handing them a book works a whole lot better than handing them a web page printout.]

--Second, I can tell you that many people who are pro-software patent are reading the book---notably, patent attorneys. They are looking for exactly what many people in this thread are looking for: a decent solution to the warts that the system has displayed to date.

--Third, among those who are opposed to software patents, there's a lot of misinformation, and I feel the debate is often going in the wrong direction. After studying the question for a few years, I strongly believe that the problem is not about obviousness, and it's not about details of enforcement.

I wrote the book, and made sure that Chapter 6 was online (the review links to it) to bring forth what I take to be the root cause: patents make no sense in a decentralized industry like software. [For more explanation of this point, read the fine chapter.]

Even if I were only preaching to the choir, I felt that pushing the debate away from obviousness and enforcement, and toward questions of patents in a decentralized industry, would be a valuable contribution.

--Fourth, you'll notice that many of the commenters who got past the first sentence of the review are looking for a decent line between software/business method patents and more traditional patents. I'm sorry if this sounds like I'm plugging my own book, but it's very difficult to draw that line in a comment thread or a 750 word article. There's a case history for context, and questions about the effects various lines could have, and questions about testing the limits of any distinction. I can't count how many people have asked me `yeah, well what about FPGAs', so FPGAs got a page or two.

Those who think that the question is interesting, whether they agree with me or not, are picking up the book.

So, that's why I wrote a book about a polarized topic, and my understanding of who's reading it.

--You're welcome to find a pro-software patent book, except there aren't any. The best you'll find are a few academic articles, most published since my book came out, that just fail to reject the hypothesis that software patents do no harm.

Everyone should read the particulars in Judge Davis' Opinion. It can be found at http://www.patentlyo.com/patent/z4.Misconduct.pdf The most interesting aspects can be found starting on page 39.

Here are some high (low) lights

"While the Court is not aware of any direct motivation on the part of Microsoft to harm Colvin, there is ample circumstantial evidence that to Microsoft Colvin and his patent rights were insignificant because Microsoft never thought Colvin would be able to pursue his rights against it. The evidence presented at trial suggests that Microsoft considered z4 a small and irrelevant company that was not worthy of Microsoft's time and attention, even if Microsoft was potentially infringing its patents."

Examples of Litigation Misconduct:

1)"This raises a serious question as to whether the email would have ever seen the light of day, had z4 not uncovered it during Moncau's deposition the day before trial. As a sanction for not disclosing the email, the Court instructed the jury that Microsoft failed to produce this document during discovery as it was supposed to have done."

2) "Closer inspection of the database by z4 revealed not only that Hughes's data summary was an inaccurate reflection of the data, but that Microsoft had not accurately disclosed the method of extraction used by Hughes to create his summary chart. The Court determined that Microsoft had attempted to mislead z4, the Court, and the jury and excluded Hughes from testifying with regard."

3) "The facts surrounding the Winkenbach declaration are highly questionable. If the information in the Winkenbach declaration was merely a mistake, it could have turned into a very beneficial mistake for Defendants if z4 had not caught the discrepancy in the SKU numbers. In light of the other instances of litigation misconduct by Defendants brought to the Court's attention, Defendants are no longer given the benefit of the doubt before this Court. Accordingly, the Court considers this "mistake" an intentional attempt by Defendants to mislead z4 and this Court."

4) "The Court concludes that Defendants attempted to bury the relevant 107 exhibits admitted at trial in its voluminous 3,449 marked exhibits in the hope that they could conceal their trial evidence in a massive pile of decoys. This type of trial tactic is not only unfair to z4, but creates unnecessary work on the Court staff and is confusing and potentially misleading to the jury."

"Finally, the Court is greatly disturbed by the repeated instances where Defendants actions go beyond what can be dismissed as a mere appearance of impropriety and collectively appear to represent a pattern which is of disappointment to the Court and a disservice to legitimate advocacy. The repeated examples, some of which are not even mentioned here, of what can be described as nothing less than misleading on the part of Defendants, justify a conclusion that Defendants committed litigation misconduct. This conduct, coupled with the fact that Microsoft was found to have willfully infringed the patents-in-suit results in this case being deemed exceptional."

"Finally, Microsoft attempted to conceal its misconduct as evidenced by the incidents discussed above with regard to litigation misconduct. Considering the totality of the circumstances, particularly the lack of evidence that Microsoft presented with regard to due care in avoiding infringement of the '471 patent prior to this suit being filed and Microsoft's misconduct during the course of the trial, enhancement of the damages awarded against Microsoft is appropriate."

http://www.patentlyo.com/patent/2006/05/supreme_co urt_v.html