Red Hat has filed a friend of the court brief with the U.S. Supreme Court asking it to uphold a lower court's ruling that software isn't patentable. Red Hat is not a direct party but took a position against software patents in the case of Bernard Bilski and Rand Warsaw versus David Kappos, Undersecretary of Commerce and director of the U.S. Patent Office. The case is now before the Supreme Court. Rob Tiller, an assistant general counsel at Red Hat, filed the brief in what he said was a rare chance to attack the patent issue head-on.

"Our patent system is supposed to foster innovation, but for open source and software in general, it does the opposite," said Tiller today in a statement announcing the amicus brief.

"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," he said.

Tiller argued that a federal Circuit Court ignored Supreme Court guidance when it decided in 1994 that someone who could show that software was "useful" and produced "a concrete and tangible result" could patent the software. Before that, the Supreme Court and lower courts had held that abstractions couldn't be patented and that a patent needed to cover an abstraction incorporated into a particular machine, or be a process that "transforms a particular article into a different state or thing," Tiller wrote.

The Supreme Court should rule in favor of Bilski and Warsaw and allow only patents that cover tangible machines and processes, the amicus brief says.