Spamming Patent Tossed Out As Obvious

from the is-that-good-or-bad? dept

Fri, Dec 4th 2009 6:35am — Mike Masnick

Slashdot points us to the news that a patent (6,631,400 -- which appears to be incorrectly titled "Statement regarding federally sponsored research or development.") on managing spamming efforts has been tossed out as obvious by the federal circuit, following a similar ruling at the lower level.

What's most interesting here is that while some of the steps were thrown out due to prior art, the final step was tossed out due to "common sense." This is important. For quite some time, the courts seemed to insist that obviousness could only be proven through prior art. But something can be both obvious and new. In fact, the patent law has been clear that patents are supposed to be for things that are both new and non-obvious to those skilled in the art, but the question of obviousness was rarely discussed, as everyone just focused on the "newness." That's finally been changing, in large part due to the Supreme Court's KSR ruling that reminded people that obviousness is important, and that it's separate from newness. Since then, both examiners and the courts seem willing to put a bit more common sense into determining obviousness, and that's absolutely a good thing.

Of course, some of you might feel that having a patent on a spamming technique is a good thing, since it could be used to prevent others from spamming, but that didn't seem to be happening anyway, so let's just be happy that a bad patent has been rejected.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: ksr, obviousness, patents, spam

18 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 4 Dec 2009 @ 7:10am

if some1 wants to patent sending spam, i think it should be approved...
[ link to this | view in chronology ]
- Marcus Carab (profile), 4 Dec 2009 @ 7:17am
  
  Re:
  Couldn't even make it to the last line of the post, huh?
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Dec 2009 @ 7:38am
    
    Re: Re:
    no i missed the last part.
    [ link to this | view in chronology ]
    - MBraedley (profile), 4 Dec 2009 @ 7:50am
      
      Re: Re: Re:
      Please learn to use the shift key, as there are two of them on your keyboard. Also, more use of the 'o' 'n' and 'e' keys would be appreciated.
      [ link to this | view in chronology ]
      - Dark Helmet (profile), 4 Dec 2009 @ 7:58am
        
        Re: Re: Re: Re:
        There seems to be a lot of anger on the intertubes today....I like it!
        
        Can we make this officially Rant Friday?
        [ link to this | view in chronology ]
        
        MBraedley (profile), 4 Dec 2009 @ 9:23am
        
        Re: Re: Re: Re: Re:
        I actually didn't mean for that to come off as sounding angry. More patronizing than anything.
        [ link to this | view in chronology ]
        
        Dark Helmet (profile), 4 Dec 2009 @ 9:30am
        
        Re: Re: Re: Re: Re: Re:
        Patronizing works for me too. I just want to hear rants. They're like candy to me.
        
        I haven't seen an article I can really go off on in a while, so somebody else needs to pick up the slack until I do....
        [ link to this | view in chronology ]
        
        m1n4r3t, 4 Dec 2009 @ 12:42pm
        
        Re: Re: Re: Re: Re: Re:
        If patronizing = douchey, then mission accomplished. L8r.
        [ link to this | view in chronology ]
        
        Yeebok (profile), 19 Feb 2010 @ 1:48am
        
        Re: Re: Re: Re: Re:
        No we bloody well can't make it Rant Friday. What the hell do you think this is ? Does it look ranty ? Is it a Friday ? Yes and Yes ? Well I never ! Maybe it is ranty Friday.
        
        Hey you, get off my lawn ! :)
        [ link to this | view in chronology ]
Anonymous Coward, 4 Dec 2009 @ 7:27am

We can only hope that our judicial system will begin to use more common sense.
[ link to this | view in chronology ]
Dark Helmet (profile), 4 Dec 2009 @ 7:44am

Question:
Can rulings like this build a backward precedence for existing patents? I mean, if this type of standard was applied retroactively, isn't there a great many patents on the books that could also be tossed out?
[ link to this | view in chronology ]
- Scott (profile), 4 Dec 2009 @ 7:52am
  
  Re: Question:
  A) No that's not how patent law works.
  
  B) Patents expire anyway so it's less about old patents and more about new patents
  [ link to this | view in chronology ]
  - Anonymous Coward, 4 Dec 2009 @ 7:58am
    
    Re: Re: Question:
    Unless there is a re-examination or litigation...
    [ link to this | view in chronology ]
- Anonymous Coward, 4 Dec 2009 @ 7:57am
  
  Re: Question:
  No. The patents would need to either go through re-examination or would need to be litigated.
  [ link to this | view in chronology ]
Angry Doodie, 4 Dec 2009 @ 8:32pm

Tech Dirt Lemming Punks
Punk Punk Little Punk
Stupid Punky
[ link to this | view in chronology ]
Anonymous Coward, 5 Dec 2009 @ 2:40pm

Rulings like this only apply to things that help producers and marketers and industry. Hence it applies to a spamming patent. If it were a patent on something that helps consumers it would simply be ignored by the court before even making it to trial.
[ link to this | view in chronology ]
staff1, 5 Dec 2009 @ 8:18pm

obviously
There is a saying among patent attorneys and others knowledgeable in patents: "every invention is obvious once someone else has done it". You are not a patent attorney and obviously not knowledgeable in patents.
[ link to this | view in chronology ]
- Whatthehellareyoutryingtosay, 6 Dec 2009 @ 11:45am
  
  Re: obviously
  Are you saying this patent should've been granted? If so, what are your reasons
  
  Are you implying the court knows nothing about patents?
  
  "Evidence of Common Sense: The district court held on summary judgment that KSR style "common sense" would lead one of ordinary skill in the art to perform the iterative step (D). On appeal, the Federal Circuit affirmed that finding - holding particularly that the finding of common sense does not require "explication in any reference or expert opinion.""
  [ link to this | view in chronology ]