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.

High performance access to file storage

More from The Register

next story
Windows 8.1, which you probably haven't upgraded to yet, ALREADY OBSOLETE
Pre-Update versions of new Windows version will no longer support patches
Android engineer: We DIDN'T copy Apple OR follow Samsung's orders
Veep testifies for Samsung during Apple patent trial
OpenSSL Heartbleed: Bloody nose for open-source bleeding hearts
Bloke behind the cockup says not enough people are helping crucial crypto project
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
Windows XP still has 27 per cent market share on its deathbed
Windows 7 making some gains on XP Death Day
Internet-of-stuff startup dumps NoSQL for ... SQL?
NoSQL taste great at first but lacks proper nutrients, says startup cloud whiz
US taxman blows Win XP deadline, must now spend millions on custom support
Gov't IT likened to 'a Model T with a lot of things on top of it'
prev story

Whitepapers

Mainstay ROI - Does application security pay?
In this whitepaper learn how you and your enterprise might benefit from better software security.
Five 3D headsets to be won!
We were so impressed by the Durovis Dive headset we’ve asked the company to give some away to Reg readers.
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.
The benefits of software based PBX
Why you should break free from your proprietary PBX and how to leverage your existing server hardware.
Mobile application security study
Download this report to see the alarming realities regarding the sheer number of applications vulnerable to attack, as well as the most common and easily addressable vulnerability errors.