Open source software as prior art in patent oppositions

The IPKat's friend Markus Hössle writes to tell him this:
"I read with interest Tufty's amicus submission to the EPO [cited with approval by Lord Hoffmann here] in respect of the European Patent Office president's referral in case G3/08.
You and your readers may be interested in six oppositions currently pending at the EPO. The opposed patents are those subject to the appeal decision T424/03 cited by the president in the referral. The patents in question are EP0717354, EP1028372, EP1028373, EP1028374, EP1028376 and EP1028377 ("Expanded Clipboard Formats") granted to Microsoft Corporation.
The principal ground for opposition is novelty and, interestingly, the prior art is open source software. These oppositions may also be of interest to the open source community who may make observations to the EPO under Article 115 EPC".
Neat summary of G3/08 here
Full list of amiucus briefs on G3/08 here
Open source software as prior art in patent oppositions Open source software as prior art in patent oppositions Reviewed by Jeremy on Thursday, October 15, 2009 Rating: 5


  1. Considering the quality of some of the amicus briefs for G3/08 (not Tufty's), I'm sure that the Opposition Division is impatient to get a tidal wave of third party observations from the "open source community".

    While I agree that it is important that the "open source community" be made aware of the transparency of patent granting and opposition procedures, I'm not sure it is going to be helpful if everybody and his dog pitches in in these proceedings. It may even help the patentee drag on the proceedings indefinitely, surely not what the "open source community" aims at.

  2. The use of Slashdot in creating a monster deluge has been discussed as part of a horror scenario. It would be effective though ungentlemanly in drawing out the proceedings.


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