EFF Asks Supreme Court to Protect FOSS Innovation

euice writes "The Electronic Frontier Foundation supports KSR International in a fight against obvious patents. They filed an amicus brief (PDF) yesterday, a short summary is on their news page (August, 23). FTA: 'The Electronic Frontier Foundation (EFF) has asked the United States Supreme Court to overturn a dangerous patent law ruling that could pose a serious threat to Free and Open Source Software projects. [...] In a recent decision, the Federal Circuit Court of Appeals affirmed its own 'suggestion test' as the main method for determining when a patent should be found obvious over knowledge in the public domain. Under this test, even the most obvious incremental advances and add-ons can be patented unless the Patent Office or a defendant in court produces a document that shows someone else suggested it prior to the patent being filed. [...] In its amicus brief filed Tuesday, EFF shows how this 'suggestion test' has led to a massive surge in bogus patenting, especially in software. These bad patents then become weapons against legitimate innovators — especially those working on Free and Open Source Software projects.' For me, this sounds like a really good shot in the right direction."

Comments

Patents should be harder to get

[andrewman327]

In the status quo it is way too easy to patent things that are not real innovation and hold on to that patent forever. Although patents are needed to protect innovation, there is no doubt that they are being abused. When there are companies whose only holdings are IP, something needs to change.

There are many ideas out there about how to fix the patent system, this being one of the more interesting ones. I usually disagree with the EFF but in this case I support them.

Re:Patents should be harder to get

[Wolfbone]

"Although patents are needed to protect innovation..."

This generalisation and assumption is possibly the worst mistake one can make when thinking about the patent system and its effects on innovation and economic welfare:

The most serious error in interpreting the economic evidence is perhaps that in section 5, where the rapporteur's statement asserts that "academic studies have shown a link between R&D spending, patent applications, and productivity." No documentation for this claim is provided. In fact, what is known via academic research is that although a firm's R&D spending is clearly related to its productivity, profitability, or market value, there is little evidence that patents contribute separately to performance, that is, above and beyond R&D spending.[17] Direct survey evidence for the United States and Europe has found that patents are only considered important for securing returns to innovation in the specialty chemicals industry including pharmaceuticals, medical instruments, and specialized machinery.
-- From a critique attached to a petition signed by 14 prominent economists."

"When there are companies whose only holdings are IP, something needs to change."

There is nothing wrong with IP holding companies or "patent trolls". Patents are property. If you extend the scope of patentable subject matter to include "everything under the sun, made by man", heedless of the warnings of economists (and others), you can damn well live with the consequences. :P

Yet another reason...

[ilovegeorgebush]

...to have major reform in the US Patent system. Not only does it seem outdated and slow, but it's increasingly becoming the focus in news where otherwise it might not have been covered.

Why oh why can't the US Government see this farse and act on it? Is Mr Gates tossing Mr Bush off or something?...

Define "obvious".

[Anonymous Coward]

Under this test, even the most obvious incremental advances and add-ons can be patented unless the Patent Office or a defendant in court produces a document that shows someone else suggested it prior to the patent being filed.

I was once shown an invention by a brilliant engineer. It looked so simple and obvious that my first thought was, "WTF! Anyone could have done this!"

But no one did before him. He was the first. In hindsight, many of the best inventions look "obvious" - that's what makes them great.

For us musicians, how many times have you heard a song and thought (honestly now) "I could have done that!"

But we didn't. That's what makes those folks (more) creative and wealthy (need that incentive!).

What I'm getting at is I'm afraid that lot of inventions will be deemed "obvious" in hindsight when in fact it was quite original. Very few inventions come from a vacum - they're are almost always built on others' work. And if we remove the incentive of a patent and copyright to (hopefully) get rich, innovation and research will come to a halt.

Re:Law vs. What's Right

[MojoRilla]

The "suggestion test" is not what patent law currently states. The "suggestion test" was made up by the Court of Appeals for the Federal Circuit as a way of applying the obviousness test.

The law states this:

A patent may not be obtained though the invention ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. (35 U.S.C. 103 (A))

The problem is applying that.

According to wikipedia:

In the last twenty years, the Court of Appeals for the Federal Circuit has dramatically limited the application of PHOSITA in its obviousness analysis. In a number of cases, the Federal Circuit only invalidated patents for obviousness when there was evidence in the prior art that presented a "suggestion or incentive" to combine the prior art. ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572, 1577 (Fed. Cir. 1984). This is known as the "suggestion test." Under the suggestion test, a PHOSITA's ability to reason two prior art references together does not matter. As a matter of law, the "suggestion test" finds no support in 103.

In fact, in an earlier Supreme Court decision, the court seemed to reject such a "suggestion test." In Graham v. John Deere Co., 383 U.S. 1, 9 (1966), the court rejected an argument that noted "nothing in the prior art suggest[s]" a "unique combination of these old features" in the claimed invention. However, since the Federal Circuit's invention of "suggestion test," the Supreme Court has yet to hear a case on obviousness.

And according to this article, "Reports from the Federal Trade Commission and the National Research Council and a pending petition for certiorari to the Supreme Court all conclude that the Federal Circuit has improperly relaxed the nonobviousness standard."

Given all this, I'd say this appeal has a pretty good chance.