Note: The Skinny blog is written by Rick Smith, editor and co-founder of Local Tech Wire and business editor of

RALEIGH, N.C. – Red Hat is taking its battle against so-called “patent trolls” to the Supreme Court.

Lawyers for the world’s top Linux open source software developer and services providers have with the nation’s highest court, asking that the powerful nine support a lower court decision that struck down software patents.

That ruling in the Bilski case says that patents must be linked to a machine, not just a business process. Red Hat is hoping the Supreme Court will support the concept of “machine-or-transformation test.” The high court will hear oral arguments about the Bilski case on Nov. 9.

Red Hat Chief Executive Officer Jim Whitehurst joined the argument, writing in a blog: “While we haven’t won yet, Red Hat will continue fighting for the good of technology and for the good of innovation.”

The Hatter lawyers note that the Bilski matter involves many of the same issues encountered in software patents.

“Red Hat continues its commitment to the free and open source software community by taking a strong position against bad software patents,” said Rob Tiller, vice president and assistant general counsel of intellectual property for Red Hat, in a statement about the amicus brief.

“Our patent system is supposed to foster innovation, but for open source and software in general, it does the opposite,” he added. “Software patents form a minefield that slows and discourages software innovation. The Bilski case presents a great opportunity for the Supreme Court to rectify this problem.”

In a blog post, Red Hat’s legal team laid out its argument in more detail, even citing Microsoft’s Bill Gates. Oddly, just a month ago, Red Hat accused Microsoft of sowing fear, uncertainty and doubt (FUD) about the patent issue.

“The success of open source software shows that patents are not necessary to promote software innovation. Patents give the right to exclude others from using an invention, but open source developers are not seeking exclusion. They want to share code and collaborate, and patents interfere with this process. Open source developers aren’t alone in understanding the dangers of patents. For example, back in 1991, Bill Gates stated, ‘If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today.’ It should be noted that Microsoft recently acquired its 10,000th patent, and Mr. Gates has not, to our knowledge, recently questioned the logic of software patents.”

Red Hat has been involved in a series of software patent cases itself and has been threatened more than once by Microsoft.

“Software patents now number in the hundreds of thousands, and they cover abstract technology in vague and difficult-to-interpret terms,” Red Hat claims. “Because software products may involve thousands of patentable components, developers face the risk of having to defend weak-but-costly patent infringement lawsuits. A new class of business enterprise – patent trolls – has developed to file lawsuits to exploit this system.”

The Hatters seek support for patents that are “tied to a particular machine or apparatus” or must “transform a particular article into a different state or thing.”

A high court ruling supporting the earlier lower court decision is important for innovation, Red Hat said.

“The scope of patentable subject matter is an issue of critical importance to the future development of all software, including open source. The Supreme Court’s Bilski decision could clarify the law and lessen the risks that innovation will be hindered by patents.”

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