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.

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Filed Under: ksr, obviousness, patents, spam

18 Comments

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Anonymous Coward, 4 Dec 2009 @ 7:10am

if some1 wants to patent sending spam, i think it should be approved...
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Marcus Carab (profile), 4 Dec 2009 @ 7:17am

Re:
Couldn't even make it to the last line of the post, huh?
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Anonymous Coward, 4 Dec 2009 @ 7:27am

We can only hope that our judicial system will begin to use more common sense.
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Anonymous Coward, 4 Dec 2009 @ 7:38am

Re: Re:
no i missed the last part.
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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?
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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.
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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
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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.
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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?
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Anonymous Coward, 4 Dec 2009 @ 7:58am

Re: Re: Question:
Unless there is a re-examination or litigation...
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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.
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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....
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m1n4r3t, 4 Dec 2009 @ 12:42pm

Re: Re: Re: Re: Re: Re:
If patronizing = douchey, then mission accomplished. L8r.
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Angry Doodie, 4 Dec 2009 @ 8:32pm

Tech Dirt Lemming Punks
Punk Punk Little Punk
Stupid Punky
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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.
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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.
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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.""
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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 ! :)
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