[Linux-aus] Fwd: U.S. Supreme Court To Hear Arguments On Software Patents And Open Source

[Arjen Lentz <arjen@mysql.com>]

http://www.informationweek.com/showArticle.jhtml?articleID=192501175

Supreme Court To Hear Arguments On Software Patents And Open Source

The EFF says the Patent Office is using the wrong standard and  
awarding too
many inappropriate software patents.


By Charles Babcock
InformationWeek

Sep 4, 2006 12:00 AM

Legal Arguments
---------------
Electronic Frontier Foundation's brief contends:
 - Patent Trolls On The March:  They realize "the probability of  
gaining
approval for a patent on an obvious innovation is quite high."
- Open Source More Valuable:  Projects share knowledge "significantly  
more
valuable than that disclosed in a patent because patents do not require
disclosure of source code."
- Growth's At Risk : "Holders of bogus obvious patents, assisted by the
Federal Circuit's improper test, may limit" the growth for which open  
source
is poised.



The opponents of proliferating software patents who see them as a  
threat to
open source software may finally get their day in court--the U.S.  
Supreme
Court.

The critics have been itching for this opportunity for years. But the
Supreme Court rarely reviews patent cases, which usually are decided by
federal appeals courts. The top court, however, has agreed to hear three
patent cases this fall, though only one relates to the impact of  
patents on
open source software.

The case involves two brake pedal manufacturers. The Electronic Frontier
Foundation, a legal advocacy group, has filed a friend of the court  
brief in
the case of KSR International v. Teleflex. The two parties will be  
arguing
whether Teleflex has patented the right to put electronic sensors on  
brakes.
The EFF has signed on to argue that the U.S. Patent Office's  
increasingly
loose grants of patents is hurting innovation in many fields, such as
electronic brake sensors, but that it's particularly worrisome for open
source code development.

Stop The Surge

Patents are meant to protect innovations that represent inventions and
breakthroughs, not steps that "a person of ordinary skill in the  
field could
consider obvious," says Corynne McSherry, an EFF attorney. Recent  
decisions
by the Circuit Court of Appeals have forced the U.S. Patent Office to  
change
its standards for patents, resulting in "a surge of software patents"  
that
often cover what McSherry says is commonplace functionality. The EFF  
wants
the Supreme Court to rule that the Patent Office should use a stricter
standard based on a 1966 decision, Graham v. John Deere.

Not everyone agrees patent standards have gotten too loose. In June,
FireStar Software sued Red Hat after its acquisition of JBoss,  
charging in a
Texas court that JBoss' open source object/relational mapping software,
called Hibernate, violates its object/relational mapping patent.  
FireStar
asserts that it patented the entire concept of object/relational  
mapping,
not merely a specific method of doing so. But facing even a bad  
patent in
court can be costly. Research In Motion, maker of the BlackBerry, was  
deemed
in violation of five NTP patents by a federal jury in 2002. With its
wireless e-mail technology at risk, RIM settled the case in March by
agreeing to pay NTP $612 million, a pact that stuck even though the  
Patent
Office a few days later overturned several NTP patents.

Open source advocate Bruce Perens claims FireStar illustrates how  
companies
keep their patent claims vague. "It's a practice to capture the maximum
range of possible infringement," he says.

Even more damaging, he says, is the potential of patent filers to  
scare off
would-be open source innovators by making claims against existing open
source projects and users of their code. A Berkeley physics teacher,  
Robert
Jacobsen, loves model railroads and built the Java Model Railroad  
Interface
as open source code for fellow hobbyists. In March, he received an  
invoice
for $203,000 from KAM Industries saying it had a patent on digital  
methods
of controlling a model railroad command station, and it was seeking  
payment
for all the times Jacobsen's code had been downloaded. Jacobsen is  
fighting
the invoice in court and asking that the KAM patent be voided.

Defending against such claims can put a small company out of business or
depress the stock price of a sizable one like Red Hat. It costs on  
average
$3 million to $5 million to mount a legal defense, according to the  
annual
survey of the American Intellectual Property Law Association. But  
Perens is
more worried about open source developers and small companies that base
their business on open source. "It's no longer possible to write a  
program
of complexity without infringing on what someone claims is their  
established
patent," he says.

As such claims mount, they will cast a chill over more open source  
companies
and probably the projects themselves. "As a society, it's a terrible  
mistake
to let that happen," Perens says. "We're going to kill the golden  
goose."


--
Arjen Lentz, Support Engineer / Trainer, MySQL AB
Based in Brisbane, Australia

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