Indeed, he said, the 2006 DSU Medical v. JMS case settled the issue clearly with a high standard for inducement that requires prior knowledge of the patent.

“This case is saying you don’t have to have intentional knowledge; if you’re reckless and don’t check to see if there’s an existing patent, you could be liable,” said Vincent LoTempio, a Buffalo, N.Y.-based patent attorney. “The whole idea of a patent system is for ideas to be freely distributed. But the more restraints they put on it, the less likely people are to get patents. I don’t know if you’ve ever searched for a patent before, but for software, it’s especially challenging.”

A lesser standard could lead to more litigation in a field already teeming with lawyers, according to LoTempio. “Any time you make a more stringent, nit-picky rule, it gives an opportunity for someone to start a lawsuit. But I still think that if someone is inducing someone else to infringe, they should be stopped. Because otherwise people will think, ‘I shouldn’t get a patent if it can’t be enforced.’ ”

The source code conundrum
This isn’t the only patent case on the Supreme Court’s docket, however. EFF is one of nearly a dozen filing “friend of the court” briefs on behalf of Microsoft in its case against i4i “to call the Court’s attention to the disproportionate impact that the Federal Circuit’s improper standard of proof has had for two important innovation communities: Free and Open Source Software (“FOSS”) projects and small software innovators generally.”

While Barclay isn’t convinced the outcome of the deep-fryer fiasco is critical to the software industry, he said, “The Microsoft case deals with something that comes up in every single patent case, which is how hard it is to prove that a patent is invalid.”

Currently, when a defendant is accused of infringing a patent, the Federal Circuit requires “clear and convincing” evidence that that patent is illegitimate and the case against it unfounded. This is more rigorous than the standard of proof for most civil cases, which is a “preponderance of the evidence”—or a showing that more likely than not the allegations are true. i4i has claimed that Microsoft’s Word application violates its patents covering how XML is handled.

In software cases, “clear and convincing” evidence of patent invalidity can be hard to come by, as source code is constantly changing over the life of a product and much of the original code is often unavailable. “Plaintiffs often argue that the original source code is a necessary part of ‘clear and convincing’ evidence,” said Barclay. This is a particular problem with free and open-source software, as the collaborative nature of the projects makes documentation even harder. Further, patent owners can use the alleged infringer’s current source code in discovery to prove infringement. Meanwhile, software patents themselves need not include source code, but merely functional description.

Too many torts
It’s been less than 20 years since the Federal Circuit expanded the definition of patents to include software, and in that time IBM has accumulated nearly 6,000 patents, more than any other company in America. Since the formation of the Federal Circuit in 1982, the number of patents issued has mushroomed, along with patent lawsuits. The extreme cost of years-long IP litigation acts as a major tax on software innovation, especially for small shops, the EFF posits.

Chewing on the question of whether software should be patented in the first place is a popular pastime (see Moglen’s views, or the recent debate among the Free Software Foundation, a patent attorney and a venture capitalist held at the Churchill Club in Mountain View, Calif.). A rollback seems unlikely at this juncture, however. And many argue, as LoTempio does, that the value of patenting IP is enhanced innovation and scientific openness rather than secrecy.