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Red Hat Seeks Limits on Software Patents
eldavojohn writes "RedHat went to the Federal Circuit Court of Appeals asking for limits on software patents yesterday. They have not uploaded their full brief yet online, but promise to post it soon. Here's a tidbit: 'Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.'"
I remember hearing once that companies like IBM often build a stockpile of patents, not so much to litigate, but so nobody else can tell them what to do with patents they don't have. Even if you're infringing on somebody else's patents, if you have enough patents of your own, you can probably find one that they're infringing on, and you've essentially come to a stalemate, so everybody's happy. Only works for the big players, though. The little guys get screwed.
ZuluPad, the wiki notepad on crack
They have not uploaded their full brief yet online, but promise to post it soon.
TFA now has a link to a PDF of the brief.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
"I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products."
PNG, Ogg Vorbis etc.
I just finished the brief. Of course this subject deserves more thorough explanation and analysis, but who has the time.
Red Hat is arguing that the Federal Circuit has failed to apply the standards set forth by the Supreme Court. Namely, they are arguing that software along does not fall within 35 USC Section 101 without some sort of physical transformation of something. See Diamond v. Diehr. The Fed. Cir. created a standard saying that software is patentable if it creates a "useful, concrete, and tangible" result. See State Street and AT&T. The Fed. Cir. then went on to say that a numerical result is a tangible result, Red Hat says that this is incorrect based on a Supreme Court case called Benson.
Red Hat is saying the Fed. Cir. has been improperly applying Supreme Court case law. Furthermore, they are making that argument to the Fed. Cir. The Fed. Cir. did ask for the argument, so the court might be receptive. However, most courts do not overturn themselves but instead find a way to set new precedent without overturning prior case law. Should we really expect the Fed. Cir. to overturn their own decisions from State Street and AT&T?
What Red Hat is not arguing, is whether software that controls a physical process that creates a transformation in a physical thing may properly be part of a patent. That was established by the Supreme Court in Diamond v. Diehr.