The Federal Court of Appeals has recently used a 'suggestion
test' to determine whether or not a patent is 'obvious'. The EFF
argues that the test forces those opposing a patent's grant to
produce documents proving that even the most obvious improvement
has been suggested before.
"The Federal Circuit's suggestion test forces litigants to
search through reams of technical papers for a document in which
someone, somewhere, bothers to state the obvious," said EFF staff
attorney Corynne McSherry. "This is inefficient and burdensome, and
contrary to the principles, policies, and standards the Supreme
Court has upheld."
"The [Appeals] court has denied judges the ability to use common
sense and rationality to determine the weight of the obviousness
evidence before them," says the argument submitted to the Supreme
Court.
In the case of Free and Open Source Software (FOSS) projects,
the suggestion test has especially pernicious effects," it says.
"Because [open source] 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 – opinion letters, litigation, etc. – are
exponentially detrimental for FOSS."
The document argues that while a corporation depends on
documentation to track patent issues such as prior art and
obviousness, the open source community's resources are much more
informal. Restricting court processes to suit the kind of
documentation only found in the corporate world acts against the
interest of open source, it says.
"To fend off patents threats FOSS [free and open source
software] projects often depend on the collective knowledge of
their members and the documentation of the projects as prior art,
to the extent that such documentation exists," it says. "Much of
this collective knowledge, however, cannot be considered as
evidence of obviousness under the Federal Circuit’s suggestion test
because it is not explicitly documented in the limited way
recognized by the court below, despite clearly meeting the
standards laid out by the plain language of Section 103 of the
Patent Act."
The amicus brief filed by the EFF relates to the case KSR v
Teleflex, which soon comes before the Supreme Court.
