When the Supreme Court heard the Bilski case earlier this year, it ruled that the specific business method patent at issue in the case was invalid and contended that the patentability of intangible methods should be reduced but not eliminated. The court declined to provide clarity on the scope of software patentability, however, which leaves a lot of important questions unanswered.

The United States Patent and Trademark Office (USPTO) has been left with the difficult responsibility of interpreting the ambiguous Bilski ruling so that it can set new standards. The USPTO has invited the public to submit comments to help it establish new guidance on patentability in the post-Bilski world. Because the issue of software patentability has profound relevance for the open source software ecosystem, Linux distributor Red Hat has submitted responses to the request for public comments.

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As USPTO evaluates Bilski, Red Hat says end software patents