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Anti-software patent campaigners in the US have taken their fight to the courts. The Electronic Frontier Foundation (EFF), Public Knowledge and the Consumers Union have joined forces to file a "friend of the court" brief with the US Court of Appeals asking for ambiguous patents to be declared invalid.

The brief was filed in a case called Phillips v. AWH Corporation, following a request from the appeals court for industry and public opinions on several issues of current patent law, the EFF said.

This is the latest step in the EFF's campaign against broad software patents: in July the organisation drew up a top-ten list of the worst offending filings, and said it would work to see that all ten were overturned. Now it wants the courts to take a more stringent approach to awarding the patents in the first place.

"Aggressive patent holders are using vague patent language to cause havoc in the software and Internet fields," said EFF legal eagle Jason Schultz. "We're asking the court to rein in these claims by limiting their scope to only those things clearly laid out in the patent itself."

The Foundation for a Free Information Infrastructure (FFII) responded cautiously to the announcement. It welcomed the action, but emphasised its position that attacking bad patents is not the whole solution. A spokesman for the organisation told us: "There are two things here. The first, the good point, is that it highlights to a wider audience just how bad some software patents are in the US.

"But our concern is that this kind of thing could give the impression that we only need to worry about bad patents, that if only patents were awarded according to the rules, properly examined and checked for prior art, everything would be OK. We don't believe that to be the case. We believe, more fundamentally, that the whole nature of patents on computer code is a mistake."

The EFF says that at the moment, US courts are interpreting vague terms in patents as broadly as possible, and will uphold a patent unless it is deemed too ambiguous. This means "improper patents of uncertain scope" are protected, giving plenty of work to legal departments, but stifling innovation and competition, it says.

Joshua Sarnoff, counsel of record on the brief, and assistant director at the Glushko-Samuelson Intellectual Property Law Clinic of the Washington College of Law, said that this could be the most important patent case ever decided. He commented: "Claim meaning is the name of the game in patent law, and the Federal Circuit has the chance to lay down clear rules to determine claim meaning that will benefit society." ®

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