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?...

While we're at it...

[UbuntuDupe]

...since most of these shoddy patents get through because the patent examiner doesn't realize the applicant has just fancied up something obvious, another major improvement would be to require patent summaries to be easily readable. How to enforce? How about this: allow patents to be invalidated on the grounds of obfusctating terminology. To test this, a defendant could be allow to offer an alternative phrasing, and if the judge|jury finds that a) the alternative phrasing describes the same invention (i.e., the plaintiff can't think of something that would fall under one but not the other), and b) the alternative phrasing is "significantly easier" to understand, the patent is invalidated. That would have the added benefit of a kick of harsh reality to those who deceive themselves about their own inventiveness. "No dude, you just put a scroll wheel on the side. You didn't provide an 'integrated mind-user-machine interface', whatever that is."

Re:While we're at it...

[tepples]

When was the last time a patent expired and became open domain.

Patents expire 20 years after filing in most cases. RSA and LZW patents have expired within the past six years.

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:Define "obvious".

[l2718]

Indeed the problem of judging the obviuosness in hindsight is difficult. However, the Federal Circuit's solution is ridiculous. They have said that the only way to make sure that a patent was obvious at the time of invention is if there existed written public record at the time describing the idea. This creates a perverse situation: if an extension of an invention is so immediate that no-one would bother to point it out in writing, then it's legally a "non-obvious" idea and you may patent this extension. At the same time people who think of less obvious extensions (in the everyday sense of the word) would tend to write them down. Along the way, an important element of the patent system has been written out of the law by the court: the "Person Having Ordinary Skill In The Art" (PHOSITA). The test of patentability in the law is whether the invention would have been obvious to a PHOSITA [at the time of invention and not in hindsight, of course].

One way to show the idea would have been obvious to the hypothetical PHOSITA is to show written work suggesting this literal idea. The Federal Circuit says this is the only way they'll accept. In effect, they have eliminated PHOSITA's skill in the art -- his own expertise. The EFF is arguing that this is especially bad for F/OSS developers. F/OSS is a collaborative low-budget enterprise. Most projects can't afford a patent department, or filing for defensive patents. Even worse, F/OSS developers are people or ordinary skill in the art of software development. If something seems obvious to them in view of the prior art they know then they assume it can't be patentable -- that's what the law says, after all. Also, software people don't tend to document every silly extension to every idea they see. Then it turns out that their skill in the art is irrelevant -- what's important is whether the small extension they made was litterally written down by another developer.

Law vs. What's Right

[Gallenod]

The issue here isn't what's right, but what patent law currently states. It's entirely possible the Supremes will uphold the appelate court.

Despite the protestations of various litigious losers, the court system, including the Supreme Court, generally prefers to interpret existing laws than make law themselves. The problem is that where the law is unclear or nonexistent, if behavior doesn't violate some constitutional principle the courts essentially say: "This is not explicitly prohibited, so it is allowed. If you want to prohibit it, seek a legislative change."

As Justice Oliver Wendell Holmes, Jr., stated: "This is a court of law, young man, not a court of justice."

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.

Where would we be without EFF? Begging the ACLU?

[pfz]

Patent law is just as big a mess as copyright law due to technology and commerce slamming into one another...

Watch EFF attorney Jason Schultz tear the roof off in the new documentary, ALTERNATIVE FREEDOM. Maybe you will learn something or be able to show your friends and then we can all make sure digital rights are always kept in mind...

Also features Dangermouse (of Gnarls Barkley), Lawrence Lessig, Richard Stallman...

Check it out:
http://alternativefreedom.org/