Feeds

Patent rulings could destroy open source software

Activists denounce US courts' 'suggestion test'

High performance access to file storage

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.

Combat fraud and increase customer satisfaction

More from The Register

next story
This time it's 'Personal': new Office 365 sub covers just two devices
Redmond also brings Office into Google's back yard
Oh no, Joe: WinPhone users already griping over 8.1 mega-update
Hang on. Which bit of Developer Preview don't you understand?
Microsoft lobs pre-release Windows Phone 8.1 at devs who dare
App makers can load it before anyone else, but if they do they're stuck with it
Half of Twitter's 'active users' are SILENT STALKERS
Nearly 50% have NEVER tweeted a word
Internet-of-stuff startup dumps NoSQL for ... SQL?
NoSQL taste great at first but lacks proper nutrients, says startup cloud whiz
Ditch the sync, paddle in the Streem: Upstart offers syncless sharing
Upload, delete and carry on sharing afterwards?
New Facebook phone app allows you to stalk your mates
Nearby Friends feature goes live in a few weeks
Microsoft TIER SMEAR changes app prices whether devs ask or not
Some go up, some go down, Redmond goes silent
Batten down the hatches, Ubuntu 14.04 LTS due in TWO DAYS
Admins dab straining server brows in advance of Trusty Tahr's long-term support landing
prev story

Whitepapers

SANS - Survey on application security programs
In this whitepaper learn about the state of application security programs and practices of 488 surveyed respondents, and discover how mature and effective these programs are.
Combat fraud and increase customer satisfaction
Based on their experience using HP ArcSight Enterprise Security Manager for IT security operations, Finansbank moved to HP ArcSight ESM for fraud management.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Top three mobile application threats
Learn about three of the top mobile application security threats facing businesses today and recommendations on how to mitigate the risk.
3 Big data security analytics techniques
Applying these Big Data security analytics techniques can help you make your business safer by detecting attacks early, before significant damage is done.