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EFF Asks Supreme Court to Protect FOSS Innovation 52

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."
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EFF Asks Supreme Court to Protect FOSS Innovation

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  • by andrewman327 ( 635952 ) on Thursday August 24, 2006 @11:01AM (#15970359) Homepage Journal
    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 [slashdot.org] 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... (Score:5, Interesting)

      by UbuntuDupe ( 970646 ) on Thursday August 24, 2006 @11:09AM (#15970433) Journal
      ...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."
      • When was the last time a patent expired and became open domain. It seems the lawyers find a way to keep extending the patent period, thus undermining the intent of the patent system!
        • Re: (Score:3, Informative)

          by tepples ( 727027 )
          When was the last time a patent expired and became open domain.

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

      • It is a learning process and the US lack a catalyst that helps people to move fast.

        - the patent problem is no examiner problem

        - obviousness etc. are not the problem

        - it is very important to talk about subject matter when you deal with non-inventions such as software.

        EFF follows a populist approach. They don't have much success with it but make a lot of noise. They fight like activists who do not aim to win. Somebody has to invest 200 000 $ in order to teach the us audience how to solve the mess and how to f
        • by ntk ( 974 )
          We [eff.org] win [eff.org].
          • Not really. Eff wins individual cases and makes noise. Given the budget EFF does nothing against software patents. Esp. the way EFF approaches Congress etc. is pretty amateurish.
      • ..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.

        That's an interesting premise, and I'd support clarity in any case, but I think it's not the root problem.

        The patent office has no disincentive to allowing a patent. (Quite the opposite, since USPTO gets paid fees by applicants.) If they get it wrong, big companies can just use

    • by Anonymous Coward
      How about this idea?

      The idea behind patents, or so they say, is that every patent is supposed to be so unique that no one else who is "skilled in the art" would ever think of such a clever idea. In order to protect the brilliant guy who thought of this ground-breaking technique, we give him a 20 year monopoly on that idea.

      Of course, unless there's a good chance that the guy really is 20 years ahead of his time, we shouldn't grant him the monopoly, because he'll be holding everyone back with his monopoly unt
      • Ensure that no one else files the same patent for five years, and only then issue the patent.

        How would this work? The patent applications are public documents. Your scheme would allow anybody to disqualify any patent by looking at an application and submitting another application for the exact same thing, thus getting both of them thrown out.

    • This is interesting since at this moment we have 4 stories in Slashdot about corporate IP issues.

      http://hardware.slashdot.org/article.pl?sid=06/08/ 24/1325214 [slashdot.org]
      http://apple.slashdot.org/article.pl?sid=06/08/24/ 0143258 [slashdot.org]
      http://yro.slashdot.org/article.pl?sid=06/08/24/00 1237 [slashdot.org]
      http://games.slashdot.org/article.pl?sid=06/08/23/ 1918246 [slashdot.org]

      Surely a company could spend more in R&D and less in lawyers if the patent system was reviewed.
    • Although patents are needed to protect innovation, there is no doubt that they are being abused.

      I have always thought that patents protect sources of revenue (money), and stifle innovation. "Hey I have this great thing, and it will change the world...for a price, muahaahaahaaa."

      Yah, maybe I am an idealist, but I feel that the world would be much more advanced without patents and other innovation retardants.
    • Re: (Score:3, Insightful)

      by Wolfbone ( 668810 )

      "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

      • by dwandy ( 907337 )

        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.

        Except that it's possibly you or me [msn.com] that will live with the concequences...and I don't know about you, but I had no personal say in this decision and can have no meaningful say in future discussions.

  • ...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?...
    • ONe word... Lobyists.

      Almost all elected officals are in the pockets of corperations and "specal intrest groups", this is also why the US government blindly supports other nations questonable acts.
  • Define "obvious". (Score:2, Insightful)

    by 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.

    Fo

    • Re: (Score:3, Interesting)

      by l2718 ( 514756 )

      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.

    • And if we remove the incentive of a patent and copyright to (hopefully) get rich, innovation and research will come to a halt.

      I can just see it now:

      Student: Professor! Professor! Breaking news! The patent system has just been scrapped!
      Professor: looking up from his microscope. Damn... just when I was on the verge of curing cancer, too. Oh well, there's nothing left to do now but throw all that research into the trash.
      Student: But- but what about the recognition of your peers? The value of helping othe
    • - 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.

      Which is quite true, but not the intended situation from the article. How many patents have been awarded to companies that were only reworded versions of ideas that have already been in use for years in the intended market? How many such stories do we see here on /.?

      The impact on OSS is that someone could find a truly innovative idea, put it into use in a "free" product, but
    • by orasio ( 188021 )
      Next time you might want to log in, so we can look at your posting history and see if you are a real person, or just an astroturfer.

      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.


      Your first phrase is correct.

      About patents, specifically software patents are not useful exactly because of your first point. "Inventions" in this field are not comm
  • There is no feasible plan to allow for the ownership of ideas. Patents are meant to protect innovators from encroachment of their property (idea/method) for a short period of time. Originally the founding fathers discussed a much shorter period than is currently in place in that there is a real stifling of creativity through exclusive patenting.
    Human thought is a process, not a destination. To suggest that the myriad connections and interconnections of neurons can somehow be frozen in time (in a patent) is
    • Imagine a world where only the people that can afford to have ideas are allowed to. How many Mozarts will die unrecognized because they infringed (bridged) on an already owned concept?

      Unfortunately, we don't have to imagine. There exist only a finite number of distinct pieces of music [slashdot.org]. Accidental copying is already considered infringement in two U.S. appeals circuits. See Bright Tunes Music v. Harrisongs Music and Three Boys Music v. Michael Bolton, both of which can be found in Columbia Law Library's mus [columbia.edu]

      • This only strengthens my point.
        To be realistic, we have had many laws and statutes on the books which have been repealed for the advancement of civilization. I contend that in the future, 'soft' goods such as ideas or thoughts will not be patentable, as it's clear we're already hitting a ceiling. This reminds me of a story in 2000 AD I once read, wherein an advanced humanity has done 'everything' and created a button that will undo everything, and it's the only thing left... I believe that in order to esca
  • Law vs. What's Right (Score:3, Informative)

    by Gallenod ( 84385 ) on Thursday August 24, 2006 @11:15AM (#15970508)
    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: (Score:3, Insightful)

      by MojoRilla ( 591502 )
      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 s

    • by deanj ( 519759 )
      "Despite the protestations of various litigious losers, the court system, including the Supreme Court, generally prefers to interpret existing laws than make law themselves."

      Also recall it's not the court's job to "make law". They're not supposed to. That's the legislator's job. The court's job is to interpret law, not make it.

      That's one of the reasons people are so pissed off at activist judges, on either side of the aisle.
  • by Anonymous Coward
    on my opensource site, atomic-ptr-plus [sourceforge.net], and put a list of patent applications by other companies for that stuff. I have to add in another one by IBM for some stuff I worked on, with them no less. I'm working in stealth mode from now on.
  • Take a group of people "skilled in the art", pose the problem to solve, give them (say) two or three hours, and record their proposed solutions. If what they come up with is similar to what the patent is trying to describe, it's obvious. If they want suggestions, solicite them and don't rely on nobody having bothered to write down the obvious.

    By the way, what is "skilled in the art", anyway? If we on slashdot find a lot of these patents silly, what would actual people with training in the specific fields
    • Limit the amount of money that can be paid from one company to another for a patent to some fraction of the revenue stream related to that product from the company wanting to use the idea.

      What if I design a new type of engine for a car that allows it to get 100 MPG? Do I get some fraction of the revenue from the sale of the entire car, or just the portion that could be considered the cost of the engine? What if I invent something that makes an reduces the size or weight of an existing device? The cost
      • "What if I design a new type of engine for a car that allows it to get 100 MPG? Do I get some fraction of the revenue from the sale of the entire car, or just the portion that could be considered the cost of the engine?"

        I would say the entire car, or products marketed as any sort of package or incentive with the car. Obviously those fine points would have to be designed with care by lawyers who know how they themselves would try and get around it.

        "The car is free if you buy our Auto Care Package for 60 mon
  • by pfz ( 965654 ) on Thursday August 24, 2006 @11:36AM (#15970780) Homepage
    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/ [alternativefreedom.org]
  • ...is to not issue then in the first place. As I discusssed previously [slashdot.org] the "suggestion" test, promulgated by the Court of Appeals for the Federal Circuit and its predecessor, the Court if Customs and Patent Appeals, has greatly increased the burden on patent examiners in making and being upheld on obviousness rejections. As the amicus brief points out the Supreme Court made a fundamental ruling on what obviousness means back in 1966 in the Graham case. The CAFC, essentially, grafted on the "suggestion" test

  • http://wiki.ffii.org/IstTamaiEn [ffii.org]

    http://threeseas.net/abstraction_physics.html [threeseas.net]

    but rather it is an application of a human characteristic, which we all have as a natural right and duty to use, to prove we are human.

Any sufficiently advanced technology is indistinguishable from a rigged demo. - Andy Finkel, computer guy

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