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.

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."

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/

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.