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Patent rulings could destroy open source software

Activists denounce US courts' 'suggestion test'

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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)

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

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