Red Hat failed to achieve the Supreme Court decision it wanted [LWN.net]

Red Hat failed to achieve the Supreme Court decision it wanted

Posted Sep 29, 2010 20:37 UTC (Wed) by elanthis (guest, #6227)
In reply to: Red Hat failed to achieve the Supreme Court decision it wanted by FlorianMueller
Parent article: Red Hat Responds to U.S. Patent and Trademark Office Request for Guidance on Bilski

Red Hat didn't "lose." The Supreme Court simply chose not to rule on software patents, as the Bilski case had nothing to do with software specifically. Red Hat did not get what they wanted, but neither did those filing briefs in favor of software patents. The entire issue was more or less ignored, the Bilski patent was thrown out, and the specific wording of the CAFC was thrown out in favor of something "less restrictive." That doesn't mean they are in favor of software patents, but only that they are against limiting patents to physical transformations of matter or physical machines (their primary argument being medical and energy-based patents which are of increasingly relevance, but which are more than a simple mathematical algorithm).

In short, Bilski was inconclusive regarding software patents.

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Red Hat failed to achieve the Supreme Court decision it wanted

Posted Sep 30, 2010 3:24 UTC (Thu) by FlorianMueller (guest, #32048) [Link] (1 responses)

The Supreme Court simply chose not to rule on software patents, as the Bilski case had nothing to do with software specifically.

What was at stake are the legal tests for patent-eligible vs. patent-ineligible subject matter. Since many briefs raised the issue of software patents and possible implications of the ruling, the SCOTUS was well aware of the context and of what kinds of patents are out there, but apparently saw no legal basis on which to put a curb on that.

Red Hat did not get what they wanted, but neither did those filing briefs in favor of software patents.

Sorry, but the second part is absolutely wrong. Maybe you didn't read the briefs of the pro-software-patent "amici curiae".

All the pro-software-patent briefs I saw (such as those filed by large high-tech corporations) were against the Bilski patent, but also against restrictive rules. I didn't see even one pro-software-patent brief that asked for wholesale affirmance of the prior instance's reasoning.

In short, Bilski was inconclusive regarding software patents.

It was very conclusive. In order to move toward restrictions, the Supreme Court would have had to walk in exactly the opposite direction. So it was definitely a setback for abolitionists.

The Supreme Court sent out a clear message that anyone wanting to abolish any category of patents has to talk to Congress, not to the judges. Nor to the USPTO, which just applies the laws Congress passes and the judges interpret. Red Hat's thing is a non-starter. If they sent a letter to all members of Congress asking for a new law that does away with software patents, it's hard to see how that would succeed, but at least they would be talking to an institution that could, if it wanted, change the law. The USPTO can't. It only applies it.

Red Hat failed to achieve the Supreme Court decision it wanted

Posted Oct 1, 2010 22:43 UTC (Fri) by sepreece (guest, #19270) [Link]

It is very rare for the Court to rule on an issue that isn't explicitly in front of it. The case didn't require them to rule on software patents, so they didn't. I don't think you can read into their failure to address software patents anything about how they might rule if/when it eventually comes to them.

Of course, there might be analytical elements in the decision itself that would suggest how they would analyze a case explicitly on software patentability