EFF filed an amicus for KSR v Teleflex with the Supreme Court, calling for the affirmation of a non-obvious test that would raise patenting standards, and increase the quality of patents in the software industry. Now, I am not a fan of EFF. As a consumer, I would rather be able to buy cutting edge technologies than have companies that make them hampered with ideological campaigns by consumer groups. However, the EFF amicus almost made me change my mind about the organization. In summary:

… in order for the economics of FOSS to continue... there must be an efficient way for FOSS ...to protect and defend themselves without incurring substantial legal fees or high transaction costs. A rigorous and fair standard for obviousness serves that purpose... the ...Graham test would allow FOSS companies to take appropriate advantage of the PHOSITA networks from which FOSS software emerges... 8.

Yet my new appreciation for EFF came to a halt as I considered their goals more closely. EFF's objective is to argue for a certain non-obvious standard that would expand the scope of admissible prior art so that “FOSS projects may continue to grow and contribute to our nation’s information economy...” 4. OK, no problem. The American economy relies on many diverse inputs, and even as a proponent of IPRs, I will acknowledge the contributions of open source and free software. My recognition of theIR importance does not extend though to where I agree with the Supreme Court refining the contours of American law just to accommodate these movements.

There should be no carve out in American law just for a software development model that refuses to adopt standard business responsibilities of due diligence, formal capital structure, accountability and usual expenses. If those groups want recognition as economic and innovating powers, they have to acquire the same risks and costs others in the technology industries assume. Despite their "revolutionary" rhetoric, claims of innovativeness and eagerness in taking on market incumbants, the inflexibility of the open source and free software movements to adopt even ordinary business practices suggests extreme fragility, not nearly reaching a level of significance the Supreme Court should consider.

Some excerpts:

The first thing that caught my eye was the refusal of open source and free software movements to even do simple accounting paper work:

Under the CAFC’s (suggestion) test… valuable documents (open source project communications) will be ignored unless they also reflect a suggestion to combine, thus prohibiting fact finders from duly considering legitimate evidence of obviousness in the software industry. 15.

Because these collaborations are forged primarily through community rather than capital investment, many FOSS projects lack the funding to pay patent counsel, much less afford litigation. Thus, the normal costs of doing business in the patent-laden world of information technology…are exponentially detrimental for FOSS. 3.

...because time is of the essence and their dialogue is informal and ongoing, they (open source and free software developers) fail to explicit suggest all the various and obvious ways the solution could be used to solve other problems. 4.

...one of the major incentives behind use of FOSS is its low cost of use. … If companies that invest in using and building on FOSS must defend themselves against bogus patent threats that cost could skyrocket. 7.

FOSS projects have even fewer options to battle the patent problem... FOSS software is rarely patented, as few projects have either the legal budget to do so or the philosophical inclination to exclude others from enjoying the benefits of their innovation. 13.

… the economic margins of many FOSS projects are so thin that the expensive legal costs associated with both acquiring or defending patents would... put the projects out of business. 13

posted by Noel Le @ 5:23 PM | Free Culture Movement, Patents, Supreme Court

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