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You are here: Home FSF News An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case

An opportunity to End Software Patents: ESP briefs Court in its historic rehearing of the Bilski case

by Matt Lee Contributions Published on Apr 08, 2008 05:16 PM

BOSTON, Massachusetts, USA -- April 8, 2008 -- End Software Patents (ESP) has filed an amicus curiae brief in the Court of Appeals for the Federal Circuit's (CAFC) rehearing of the In re Bilski case. The rehearing could lead to the elimination of patents on software. ESP executive director Ben Klemens said, "This is an historic opportunity to fix the US patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents. In our brief, the End Software Patents project supports the Supreme Court's long-held position that computer software should not be patentable, and has highlighted to the Court the real economic harm software patents cause the US economy."

With the boundary to what can be patented effectively destroyed by previous Federal Circuit rulings, massive-scale liability has been created throughout the US economy. ESP's brief also demonstrates that this liability is not merely a theoretical prediction, but a real economic harm. Over the last few months alone, ESP has tallied over fifty non-software companies being sued for infringement regarding their web sites or other course-of-business software, including the Green Bay Packers, McDonald’s, Dole Foods, Kraft Foods, Caterpillar, J Crew, Burlington Coat Factory, Wal-Mart, and Tire Kingdom. The rest of this list can be found at

Ironically, the Federal Circuit's own web site at is produced using software that likely infringes some number of software patents. In fact, the last decade of software patents has brought about many onerous and frivolous lawsuits, inspiring Congressional action and causing many to question the entire patent system. Many patents famous as the rallying points for patent opposition, such as the "Blackberry patents" from NTP v. Research in Motion, Ltd., have been software patents.

ESP's brief points out that these patents centered on claims over pure information. Under US law, pure information is not patentable. Further, the Supreme Court ruled three times that pure information does not necessarily become patentable when recited in combination with a physical object, such as information written to paper or loaded into a computer's memory. However, the Court of Appeals for the Federal Circuit ignored the Supreme Court's repeated rulings, and began allowing patents on information plus any physical component: a formula, if saved to a computer's hard drive; a price list, if money is eventually moved; not a correlation, but the act of correlating. The ESP brief recommends re-establishing the Supreme Court's rule that information should not be patentable, even when claimed in tandem with a physical afterthought.

In its review, the Federal Circuit rehearing of the In re Bilski case will address three issues essential to the patentability of software:

  1. What standard should govern in determining whether a process is patent-eligible subject matter?
  2. Is the claimed subject matter not patentable because it constitutes an abstract idea or mental process? When does a claim that contains both mental and physical steps create patent-eligible subject matter?
  3. Must a method or process result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter?

ESP's amicus brief can be found at The rehearing will take place on Thursday May 8, 2008.

About End Software Patents

End Software Patents is a project formed to eliminate patents for software and other designs with no physically innovative step. It promotes a US technology-development environment which will drive innovation and growth in the global marketplace. End Software Patents receives sponsorship from the Free Software Foundation. For more information on participating in the project, or to access its knowledge base, please visit its website at

Media Contacts

Ben Klemens
Executive Director
End Software Patents


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