Investigating The Obviousness Of Software Patents
from the can-you-look-at-obviousness? dept
In many of our discussions about the patent system, one of the big debates between those who think the system is just dandy and those who have problems with it concerns the question of "obviousness." One of the stated tests for whether or not a patent should be granted is whether it is non-obvious to a person who is skilled in the art. However, the way the patent office currently looks at things, they only look for prior art to prove obviousness. In most cases, prior art either means earlier patents or published journals. There can be plenty of other prior art, which is a problem, but it's worth examining whether or not prior art is actually needed for obviousness. Just because something hasn't been done before, it doesn't mean that it's not the next "obvious" progression in the art. However, those who fight against this view (often patent lawyers) claim that it's impossible to have any test for obviousness because those who are "skilled in the art" will think anything is obvious in retrospect (perhaps out of professional pride for not having thought of it first) and because it's impossible to define obviousness for someone skilled in the art. The first claim seems to take a dim view on human nature. The second raises questions about all sorts of other similar tests in the law (how do you define "reasonable" in "reasonable person" tests, for example).So, is it possible to look at the obviousness of a patent? Tim Lee, over at Tech Liberation Front, is starting a new project each week to examine a different software patent. This week, he's looking at the flight simulator patent that was used to try to stop the distribution of Google Earth. Lee points out how the patent meets the qualifications of obviousness, while also showing just how broad made of the claims are -- going well beyond protecting a single invention. It seems like a good demonstration of how someone can explore the obviousness of a patent, without necessarily delving into the specific prior art -- and it certainly does not appear to be a case of Tim's "professional jealousy" trying to invalidate the patent. Rather, he points out that the various claims are fairly obvious, and just about any decent programmer would use the same approach in creating a similar flight simulator system. So, even if this specific solution had not been done before, anyone attempting to tackle a flight simulator program would likely do the same thing. In that case, what benefit is there to granting a monopoly to just one player?
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Obvious, please
Back in the old days, when memory and computing power were more limited, the real innovators could write software that was amazingly more efficient than what hacks could write. It's comparable to prose writers, who can say in a sentence, what others run on about for paragraphs.
That's where I suppose Mike and I differ about what defines a patentable invention. Mike wants it to be earth-shattering, or pioneering, or previously-unthinkable. I prefer to award exclusive rights to those who make things better, more efficient, wiser, cheaper, easier, more-troublefree - the difference between a work of inventive genius, and something ordinary and workmanlike can be seen and has to be appreciated. Give that man a patent!!
P.S. I agree that patents on "concepts" that might be implemented in software are a bad thing, as are all patents or copyrights on "concepts" or unimplemented "ideas."
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Re: Obvious, please
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Re: Obvious, please
Is there any software patent that does not use programming steps already known to programmers?
Is there any book written that doesn't already use words and grammatical rules already known to authors? Does that mean that there is no "innovation" in writing anymore?
I realize we're talking about the difference between 'copyright' vs 'patent' but in terms of code, I think the post regarding 'follow the money' hits the nail on the head.
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That guy already have protection: it's called copyright law. If you copy his code, he can sue you for infringement. How does patent law offer any additional protections?
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Re:
The amount received from copyright infringment is small compared to what can be received from patent violation.
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Standing next to a bucket of water with your show on fire? I could get a patent for the process of inserting your foot into the bucket to extinguish the flames.
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Bucket of water and foot
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Immersion Technology Force Feedback
Since that time Immersion Technology out of San Jose has won all of it's patent lawsuits and has pretty much ruined any innovation from devices that provide tactile feedback to ANY peripjeral connected to ANY computing device.
Ive begged and pleaded anyone to fight this nonsensical patent but nobody ever seems to even care or try.
As an ordinary citizen what can we do other than pay some scumbag lawyer? Why do WE (the public)have to LOSE out on innovation because of one companies greed?
Does ANYONE actually believe Immersion deserves such a "BROAD PATENT" (other than lawyers)?
This is just one example but it affects every gamer.
Mitch
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Re: Immersion Technology Force Feedback
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TO GRANT OR NOT TO GRANT...
This is straight from the USPTO.
It seems to me that something is clrealy missing and that is scope. What is the scope of any invention?
If I patent a wire that is bent a certain way and is used to remove hardboiled eggs from boiling water does that include all wires bent in that manner even if they are used to say light pilot lights in gas boilers? Which is more novel an idea the bent wire or a new use for it?
Do I, as the inventor, have the right to pursue the maker of the wire for pilot lights?
I am convinced that some of this art is applied to too broad a scope. Patents should be application specific, if it falls in a grey area that is what the USPTO is for. But it seems that the USPTO grants a bent wire patent regardless of application and herein lies the problem.
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Re: TO GRANT OR NOT TO GRANT...
It seems to me that since something must be both "new" and "not obvious" those two expressions must be intended to refer to different concepts. "New" is easy - if it is contained in the existing literature it is not new. But being "new" is not enough - that is by the ordinary construction of the language it is not enough that the idea cannot be found in the existing literature - the idea must meet a further test of not being obvious. The fact that deciding obviousness may be difficult is no reason for ignoring the wording of the law. It seems to me that any idea which will inevitably be arrived at by at least one skilled person within a reasonable time if a number of skilled people turn their minds to the problem is "obvious".
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Re: TO GRANT OR NOT TO GRANT...
In the wire example, it still depends. If it's claimed as a product, then probably rejected. If claimed as a method, then might be allowable. Never know. Again, it mostly depends on the claims. They can make or break an invention.
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All it would take...
I'm looking for investors to get this business off the ground...
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Re: All it would take...
That's it! $$$ is on the way
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Re: Re: All it would take...
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Re: Re: All it would take...
NET. (O) IS MY YAHOO FINANCE HA HA HA CALL ME AND LETS GET RITCH b>
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Patent a language, copyright the program
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What I wouldn't give
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Retroactive Obviousness
So the test of obviousness is not "is it obvious NOW", its "was it obvious THEN". The only way to know that is to look at the literature from around the time of invention. Unfortunately, such background research rarely happens, and that's where we start to get into trouble.
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Software should not be patentable!
The only exception that I can think of is where software is an expression of an invention - such as encryption, which can be expressed as an engineering process. In that case it is the process that is patentable, but the software implementation.
Software=Copyright
Inventions=Patents
An questions?
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Im sick of getting used and the slander is sick
VERY MUCH
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