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FSF files brief in Bilski case calling on the Supreme Court to eliminate software patents

by John Sullivan Contributions Published on Oct 02, 2009 09:46 PM

BOSTON, Massachusetts, USA -- Friday, October 2, 2009 -- The Free Software Foundation (FSF) today submitted an amicus curiae brief calling on the Supreme Court to affirm that software ideas are not patentable. After outlining the positive impact that the free software movement and the GNU General Public License (GNU GPL) have had on computer use, the brief explains how software patents are an obstacle and a danger to software developers.

FSF founder Richard Stallman and the free software movement have been campaigning worldwide against software patents since the late 1980s, but the effort in the United States is coming to a head with the Supreme Court now reviewing patentable scope for the first time since 1981's Diamond v. Diehr case.

End Software Patents (ESP) executive director Ciaran O'Riordan explained, "Every software patent is a restriction on software developers and users of computers, and there are currently 200,000 software patents in the USA. As well as being an unjust restriction on a common household tool, time has now also proven software patents to be an economic failure and a hindrance to the progress of the useful arts. This means they've failed their constitutional mandate and have no legal legitimacy. The Supreme Court has itself never authorized the patenting of software ideas, so there's real hope that this problem can finally be solved."

O'Riordan credited the wiki contributors for their help, saying, "Much of the material for this brief came from our publicly editable wiki at For each point we decided to make, we used the wiki to find references and quotes and further information -- and I hope other brief drafters found it useful too. Contributing to this resource is a great way for people to get involved in the campaign -- the Bilski case will continue for months, and there is still much work to be done to eliminate software patents worldwide."

The 44-page brief further details the commonly noted outrageous risks and expenses imposed by patents, which leave individuals and small projects particularly vulnerable, but also highlights the deeper injustices: "This inability to participate on an even basis amplifies the problem, but there is also a deeper problem: losing control of one’s computing in his or her daily life. Because individuals can write software, they can help themselves and solve their own problems. Given that software development includes common activities such as making a webpage, the freedom to use a computer as you see fit for your daily life is a fundamental form of expression, just as using a pen and paper is. ... In the context of writing an email reader, a word processor, or an image viewer, being blocked from reading, modifying, or writing in the required data format is equivalent to being banned from writing a functional program for that task."

In April of 2008, FSF worked with the End Software Patents (ESP) campaign to file an amicus curiae brief in the Court of Appeals for the Federal Circuit's (CAFC) hearing of the in re Bilski case. In October 2008, the CAFC issued its ruling, which gutted patents on program ideas running on general-purpose computers. In June of this year, the Supreme Court decided to review the case.

The full text of the brief is available online at

More information about the briefs which have been submitted is available at

About the End Software Patents campaign

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

About the Free Software Foundation

The Free Software Foundation, founded in 1985, is dedicated to promoting computer users' right to use, study, copy, modify, and redistribute computer programs. The FSF promotes the development and use of free (as in freedom) software -- particularly the GNU operating system and its GNU/Linux variants -- and free documentation for free software. The FSF also helps to spread awareness of the ethical and political issues of freedom in the use of software, and its Web sites, located at and, are an important source of information about GNU/Linux. Donations to support the FSF's work can be made at Its headquarters are in Boston, MA, USA.

About Free Software and Open Source

The free software movement's goal is freedom for computer users. Some, especially corporations, advocate a different viewpoint, known as "open source," which cites only practical goals such as making software powerful and reliable, focuses on development models, and avoids discussion of ethics and freedom. These two viewpoints are different at the deepest level. For more explanation, see

Media Contacts

Ciaran O'Riordan
Executive Director, End Software Patents
+32 487 64 17 54
esp (at)


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