EFF decries patenting ‘suggestion test’

US digital rights campaigners have asked the country’s Supreme Court to overturn a patent law ruling that they believe poses a serious threat to Free and Open Source Software projects.

The Electronic Frontier Foundation is concerned about a recent ruling by the Federal Circuit Court of Appeals, which 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.

‘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.’

In an amicus brief filed Tuesday, the EFF claims that the suggestion test has led to a ‘massive surge in bogus patenting’, particularly with regard to software, and argues that these patents then become weapons against legitimate innovators, especially those working on Free and Open Source Software projects.

‘Free and Open Source Software projects have become an integral part of the software industry and our nation’s economy,’ said EFF staff attorney Jason Schultz. ‘They often lack the resources or formal documentation to fight against bogus patents under the suggestion test, so it is principally important that the Supreme Court set the appropriate standard to prevent the approval of bogus patents.’

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