OpenSourceLegal.org

In what could be a potentially far-reaching case (if not eventually overturned by the Supreme Court), on October 30, 2008, the U.S. Federal Court of Appeals for the Federal Circuit has issued an opinion in In re Bilski which denies patent coverage to an invention implementing a method of hedging risk in the field of commodities trading.  It specifically rejects part of the analysis used under the State Street Bank case which was the basis of the modern (i.e. post-1998) boom in software patent filings.

The Bilski case upholds the patent office’s rejection of an invention as patentable; it was not decided in the context of the assertion of a patent against an alleged infringer.  However, the basics principles in the case would seem also to be applicable to issued patents.

The full impact of the case needs to be considered — it is not in itself a rejection of the possibility of software having patent protection, but instead a very significant restriction on the kinds of software that can be protected by patents in the United States.  Patent protection for software in the EU has (since rejection of legislation on the subject in 2005) been subject to greater limitations than in the United States.

This case has obvious implications for the open source software movement, as the possibility of patent problems with open source software has been a cause of uncertainty in many situations.

An interesting article on how Microsoft patent claims are complicated by GPLv3.

According to news reports, IP Innovation and Technology Licensing Corporation sued Red Hat and Novell on patents related to the Linux user interface. The complaint can be found here.

See arstechnica article regarding Google’s decision to go with the Open Invention Network.

According to CNET News.com, Microsoft has won a reversal of recent MP3 patent decision.

This case was particularly troubling to the open source software movement as it implied that incremental improvements might receive patent protection. The text of the case can be found here.

Would GPLv3 interfere with the Novell Microsoft arrangement?.

Richard Stallman has criticized the OSDL patent project as being insufficiently aggresive because it only seems to address "absurd" patents as opposed to those which lack clear prior art.

KSR International Co. v. Teleflex, Inc., a recent Federal appeals court case, appears to require a new higher standard for determining if a n invention was "obvious" (and accordingly not entitled to patent protection). According to an Electronic Frontier Foundation argument, 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. If not overturned, this could complicate open source developer efforts to avoid patents for incremental improvements.

The OSGi alliance (including Nokia, IBM, Samsung, Gatespace Telematics and ProSyst Software) pledged royalty-free access to certain patents.  OSGi technology is a dynamic module system for Java.