Feeds

Patent rulings could destroy open source software

Activists denounce US courts' 'suggestion test'

Secure remote control for conventional and virtual desktops

US courts are endangering the very existence of free and open source software, according to a leading digital rights pressure group.

The Electronic Frontier Foundation (EFF) has asked the US Supreme Court to reverse lower courts' patent decisions.

The Federal Court of Appeals has recently used a "suggestion test" to determine whether or not a patent is "obvious". The EFF argues that the test forces those opposing a patent's grant to produce documents proving that even the most obvious improvement has been suggested before.

"The Federal Circuit's suggestion test forces litigants to search through reams of technical papers for a document in which someone, somewhere, bothers to state the obvious," said EFF staff attorney Corynne McSherry. "This is inefficient and burdensome and contrary to the principles, policies, and standards the Supreme Court has upheld.

"The [Appeals] court has denied judges the ability to use common sense and rationality to determine the weight of the obviousness evidence before them," says the argument submitted to the Supreme Court.

"In the case of Free and Open Source Software (FOSS) projects, the suggestion test has especially pernicious effects," it says. "Because [open source] collaborations are forged primarily through community rather than capital investment, many FOSS projects lack the funding to pay patent counsel, much less afford litigation. Thus, the normal costs of doing business in the patent-laden world of information technology – opinion letters, litigation, etc. – are exponentially detrimental for FOSS."

The document argues that while a corporation depends on documentation to track patent issues such as prior art and obviousness, the open source community's resources are much more informal. Restricting court processes to suit the kind of documentation only found in the corporate world acts against the interest of open source, it says.

"To fend off patents threats FOSS projects often depend on the collective knowledge of their members and the documentation of the projects as prior art, to the extent that such documentation exists," it says. "Much of this collective knowledge, however, cannot be considered as evidence of obviousness under the Federal Circuit's suggestion test because it is not explicitly documented in the limited way recognised by the court below, despite clearly meeting the standards laid out by the plain language of Section 103 of the Patent Act."

The amicus brief filed by the EFF relates to the case KSR v Teleflex, which soon comes before the Supreme Court.

See: The EFF brief (19-page / 221KB PDF)

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

Secure remote control for conventional and virtual desktops

More from The Register

next story
Microsoft boots 1,500 dodgy apps from the Windows Store
DEVELOPERS! DEVELOPERS! DEVELOPERS! Naughty, misleading developers!
'Stop dissing Google or quit': OK, I quit, says Code Club co-founder
And now a message from our sponsors: 'STFU or else'
Apple promises to lift Curse of the Drained iPhone 5 Battery
Have you tried turning it off and...? Never mind, here's a replacement
Uber, Lyft and cutting corners: The true face of the Sharing Economy
Casual labour and tired ideas = not really web-tastic
Mozilla's 'Tiles' ads debut in new Firefox nightlies
You can try turning them off and on again
Linux turns 23 and Linus Torvalds celebrates as only he can
No, not with swearing, but by controlling the release cycle
prev story

Whitepapers

5 things you didn’t know about cloud backup
IT departments are embracing cloud backup, but there’s a lot you need to know before choosing a service provider. Learn all the critical things you need to know.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Backing up Big Data
Solving backup challenges and “protect everything from everywhere,” as we move into the era of big data management and the adoption of BYOD.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?