The Supreme Court will hear arguments today for and against patents for business methods. This category covers patents on software, so this is a huge case which has the potential to change the balance of power in our industry. In 1997 there were 974 applications, in 2008 there were 13,779 (with an 85% rejection rate over the past three years). I’ve always viewed software patents as ambiguous. Where do you draw the line between smart use of well known math techniques, and true innovation? So starting today the Supreme Court gets an opportunity to weigh in.

If I had to predict an outcome – I would bet that there will be more emphasis on copyright, and maybe trade secrets. Both are more tangible, and to me seem more likely to result in straightforward rulings when in dispute. But the justices won’t get a clear reading from the software industry itself, there are just too many agendas at work.

One agenda is around open source. A stricter set of guidelines for what constitutes a software patent would reduce the uncertainty around OSS patent issues, and that would be a good thing for users of open source.