Yesterday, the Open Source Initiative, alongside the Free Software Foundation, filed a "friend of the court" brief in Alice Corp. v. CLS Bank, a case currently being considered by the United States Supreme Court. (pdf, html) In this case, the Court has asked, in essence, under what conditions (if any) software is "patent-eligible subject matter" under Section 101 of the US patent statute.
Drafted by the Software Freedom Law Center, the OSI-FSF brief argues that the "machine or transformation" test is the correct, and exclusive, bright line test for patent eligibility of computer-implemented inventions. In particular, the brief argues that this test is in keeping with the Supreme Court's existing patent jurisprudence, including the recent Bilski v. Kappos case; and that this position is also consistent with freedom of speech and the First Amendment (a position also supported by the ACLU in this case). Most current software patents would not be able to meet the requirements of this test.
OSI joined this brief because of OSI's overall position on software patents: that they do more harm than good to the software industry, and that they are particularly damaging to free and open source development, which depends on the unencumbered exchange of ideas between community members. Beyond the legal arguments already mentioned, the brief seeks to educate the Court about the recent history of software innovation, and free and open source software's role in that history, to show that following the Court's rulings in cases like Gottschalk v. Benson would help, not hinder, innovation in the industry. (EFF also focused on this argument in their brief.) We hope the Court will find this persuasive and lift this onerous burden, so that the entire industry - and open source in particular - can focus our resources on creating software that enriches all of us, instead of on legal battles over the ownership of abstract ideas.