Open source threatened by judicial activism

The idea of patenting software or even business methods did not come from Congress. It came from courts, whose rulings expanding patent rights made these things possible.

Now those activist judges are at it again, charges the Electronic Frontier Foundation. They have a new thing called the "suggestion test." The idea is that if you can't prove someone mentioned an obvious idea, then it's not obvious.

The U.S. Court of Appeals for the Federal Circuit has been using the suggestion test, but that test will be tested in the next term of the Supreme Court. The EFF wrote its criticism in a brief for the case of KSR International vs. Teleflex, where it joins petitions from Microsoft, Cisco, and Hallmark.

Regardless of how the court rules, judicial patent action is something the people, and the industry, should have a chance to review.

So here is a modest proposal.

The next Congress should appoint a commission, with lawyers, engineers, and people from the affected industries, to look into a complete reform of the patent law. Let it hold hearings around the country, open hearings. Let's talk about software patents, obvious patents, business method patents, and the overburdened mess which is the current U.S. Patent & Trademark Office. Then let the commission report suggest legislation which can be considered as a package, and which will have bipartisan support.  

What the open source industry really needs is not a win in court, but true patent reform. The best way to get it is not in the courts, but with an open process.