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Re: [xml-dev] Suggestion test - WAS: Patents on XML software, file formats, schemas, vocabularies

Michael Kay wrote:
> (a) there is no practical way when writing software of ensuring that it does
> not infringe patents

The Electronic Freedom Foundation sent out a press release a about a development
in US law that might further complicate the problem of avoiding infringing on
patents. It has to do with the prior knowledge test for something to be
patentable. A US court has applied a "suggestion test" in deciding whether
something is patentable.

For the full amicus brief:

From the press release

In a recent decision, the Federal Circuit Court of Appeals
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, who co-authored
the amicus brief.  "This is inefficient and burdensome, and
contrary to the principles, policies, and standards the
Supreme Court has upheld."

In its amicus brief filed Tuesday, EFF shows how this
"suggestion test" has led to a massive surge in bogus
patenting, especially in software.  These bad patents then
become weapons against legitimate innovators -- especially
those working on Free and Open Source Software projects.

Press release:

======== Ken North ===========

> Michael Kay
> http://www.saxonica.com/
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