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Why A Real Obviousness Test For Patents Would Save A Lot Of Wasted Effort

from the digging-deep-for-prior-art dept

Wed, Nov 15th 2006 4:55pm — Mike Masnick

We've been among those pushing for a real test for patent obviousness, rather than just accepting "prior art." The law is clear that patents are supposed to be both new and non-obvious to a skilled practitioner. Prior art only covers the "new" part -- not the obvious part. However, patent lawyers have somehow turned the law around so that there is no obviousness test other than whether any prior art exists. To see why this is silly, take a look at the effort a group like the EFF needs to go through to continue their ongoing project of busting bad patents. Rather than being able to challenge a couple of truly obvious patents on that claim, they need to go hunting for prior art in order to bust the patents. Just because there is no prior art, it doesn't mean an idea is non-obvious. It might just mean that the timing wasn't right yet, or some other component or variable wasn't ready yet. In the two patents the EFF is asking for help on, both seem like obvious extensions of very simple ideas, where the potential for missing prior art has more to do with the speed with which the internet developed, rather than any big innovative breakthrough by the patent holders.

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14 Comments

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Susheel Daswani, 15 Nov 2006 @ 5:19pm

A Real Obviousness Test?
Would this test be more to your liking, Mike? I wouldn't state it so loftily, but I do think the current non-obviousness bar needs to be raised.
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- Joe Smith, 15 Nov 2006 @ 6:18pm
  
  Re: A Real Obviousness Test?
  As the article you reference makes clear the flash of genius test was overturned by Congress although in Graham v. John Deere SCOTUS suggested that they had never really adopted the flash of genius test.
  
  As a first test, any software patent should be rejected as obvious if it is simply an implementation of something which had previously been done in the physical world.
  
  For example, I saw a summary of one software patent for the "invention" that when allocating processing jobs among multiple processors you assign a new job to the processor with the shortest waiting queue - that is pretty much what I do when I go the supermarket and decide which checkout line to join.
  
  It is hard to believe that there was not a physical world equivalent of "Buy it Now" hundreds of years before anyone thought of the Internet. The "quick sale price" concept in art auctions certainly comes close.
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- Mike (profile), 15 Nov 2006 @ 10:38pm
  
  Re: A Real Obviousness Test?
  Would this test be more to your liking, Mike? I wouldn't state it so loftily, but I do think the current non-obviousness bar needs to be raised.
  
  No, I don't believe the "flash of genius" test is meaningful here. The test is clearly laid out: "non-obvious" to those who skilled in the art. So, you get comments from multiple people who are skilled in the art and see if they can make a convincing case of non-obviousness. Not saying to just trust them, but have them explain why it's non-obvious. If they're convincing then it's failed the test.
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AJ, 15 Nov 2006 @ 5:45pm

Hmmm
I think the "obvious" test would be very important, but I think the problem is so deep, only a complete overhaul of the patent system would fix things. I would like to see a test done, to prove a point. Take a complete obvious patent, word it with some exceptional laywer speak, completely obscure the true idea of the patent with the double talk to the point no one really knows what it is exactly your trying to patent, and see if it is granted.. I bet it does. I've read some of the applications, its a wonder anyone could understand what it is exactly there trying to protect.
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Thor, 15 Nov 2006 @ 5:49pm

patent office just wants to make money
its obvious that the patent office will accept nearly anything. they do this because it is how they make their money and reach their budget goals. if the patent office was truly non-profit, then this would be different.
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william, 15 Nov 2006 @ 6:34pm

that is so obvious
Everything is obvious once you see it. Something as important as this should not be determined by something as subjective as obviousness. That or everyone at the patent office is retarded.
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Andrew Pollack, 15 Nov 2006 @ 6:40pm

The best inventions are obvious - once invented
I've invented something and am taking it to market. It looks promising. One of the reasons it looks promising is that everyone who hears about it says "wow, that's obvious now that I hear you describe it. why hasn't anyone done that?"

The answer is, because they didn't. I did.

The problem with the patent is not the "obviousness" of inventions, is the range of what is patentable.

DNA, Business Processes, and Software techniques are not suitable for patents.
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- Joe Smith, 15 Nov 2006 @ 7:31pm
  
  Re: The best inventions are obvious - once invente
  The patent at issue in KSR has nothing to do with software and everyone should agree that it is obvious under any reasonable definition and should not have gotten a patent.
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- angry dude, 15 Nov 2006 @ 8:38pm
  
  Andrew Pollack's generosity
  Hey, dude,
  
  So, you have invented and patented some mechanical toy or whatever and you want to profit from your invention, but at the same tiume you deny the right to profit to all of us, research guys with Ph.D's working on such obscure and highly complex problems as ,for example, computer speech recognition, computer vision etc.
  Don't you think that your fucking toy, no matter how proud you are, is much less important to human progress than the problems I've mentioned?
  Even though solutions to most such problems are implemented entirely in software nowdays, for technical and economiocal reasons.
  Software runs the world, dude.
  Take some technical classes- you need them
  This forum really deserves another name, "techignorance" for example...
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Xenohacker@hotmail.com, 15 Nov 2006 @ 7:07pm

New Methods...
I agree with:

"why hasn't anyone done that?"
"The answer is, because they didn't. I did."

whole-heartedly... :-)

However, I also agree with the purpose of the article. I have interpreted to mean new methods of determining who should be able to market and idea exclusively need be devised better. Could you imagine the reasearchers that harnesses the power of nano technology deciding not to press forward because everyone and their brother would be able to piggy back on their genius and put them out of buisness? Researchers should reap rewards of their genius...
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James, 15 Nov 2006 @ 7:23pm

Yet it would cause an industry to become soley sev
What I notice a lot of techs (programmers, engineers, fellow CS classmates) don't seem to understand is that, its all about the money. That simple driving factor is why patents are so important. He who comes up with the idea first (or is not wise enough to market it him/herself) should not complain when someone else can see the monetary value in it. Even if it is prior art. I've said it before and i'll continue to say it, the ideal of 'free' infomation is a fallacy. It is hard to become a millionaire (or billionaire) by giving your product away. Eventually, you gotta account for it. Unless you think you can go into a supermarket and walk out with food for free.
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Trent, 15 Nov 2006 @ 8:27pm

What we really need is...
An obviously not test.
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Joe Smith, 15 Nov 2006 @ 10:52pm

nothing can prevent an idea whose time has come
"So, you get comments from multiple people who are skilled in the art and see if they can make a convincing case"

I wish it were that easy. We get dueling experts now arguing over whether or not an invention is different from the prior art or not and that is an easy problem compared with obviousness. I'm not saying that there is a better way, I'm just saying that experts is not easy.

Personally I think the obviousness standard should be couched in terms of the likelihood of the solution being found within a reasonable period of time by independent discovery.
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Crosbie Fitch (profile), 16 Nov 2006 @ 4:40am

Patents are for people
Remember guys, patents are there for the benefit of the public, not the innovator or their prosperity.

Patents were created to persuade innovators to share their knowledge and the benefits of that knowledge rather than to exploit it privately - in case it should die with the inventor.
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