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Supreme Court Case Could Affect Developers' Secondary Patent Liability, Says SFLC in Amicus Brief

December 6, 2010

The United States Supreme Court will decide a case this term that could determine whether free software developers are liable for patent infringement by users of their software. In the case, Global-Tech Appliances v. SEB, the Court will decide whether a person can be liable for inducing another's infringement of a patent by being "deliberately indifferent" to the likelihood that the patent exists. The Software Freedom Law Center, in the "friend of the court" brief it filed today, argued that this new standard would create uncertainty and discourage free software development.

The case involves a patent on the thermal-resistant components of inexpensive deep-fat fryers, but the new standard could have negative consequences for independent software developers. Under the previous standard, it was impossible to induce infringement of a patent without knowing the patent existed. The new standard, adopted by the Federal Circuit in the case below, undermines that limitation, potentially expanding inducement doctrine to reach previously noninfringing conduct. This expansion is of particular concern to free software developers, SFLC says, because they typically produce and distribute only source code, which merely embodies abstract ideas and therefore cannot infringe patents directly.

"The unpatentability of abstract ideas has allowed free software developers to innovate freely for decades," said Aaron Williamson, counsel for SFLC. "By removing the clear limits on inducement claims, the Federal Circuit may have inadvertently exposed free software developers to claims they couldn't possibly anticipate. The Supreme Court should reaffirm its own standard, which has demonstrated no need for renovation."

The Court's decision to hear the SEB case comes shortly after its landmark ruling in Bilski v. Kappos, which addressed the legal test for patent-elligibility of processes. SFLC filed an amicus brief in that case as well, and published a collection of resources related to the case.

The SFLC is a nonprofit legal services organization established in 2005 to provide pro bono assistance to developers of free software. For press inquiries and interview requests, e-mail press@softwarefreedom.org or contact Ian Sullivan at (212) 461–1905.

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