US Patent Office Makes It Harder To Reject Patents For Obviousness
from the that's-not-good dept
The David Kappos-run USPTO seems to just get worse and worse. Already this year, we had noted that the patent office, under his charge, had started approving patents at an unprecedented rate, after a few years of corrections. It's become quite obvious that Kappos is pushing to get more patents approved, rather than fixing the patent system or making sure that it works to actually help innovation. I don't know why he's doing so, but it's quite troubling. The latest indicator of this is the fact that the USPTO has issued new guidelines on obviousness that effectively make it much harder for examiners to reject patent claims as obvious (found via Slashdot).For years, one of the biggest problems with the patent office was that it approved all kinds of obvious inventions as patentable. Patents are only supposed to be given for things that are both new and non-obvious to those skilled in the art. However, for the most part, examiners focused solely on the "new" part (as determined by prior art) and effectively ignored whether or not it was obvious to those skilled in the art. Finally, in 2006, the Supreme Court agreed to look at the standards for "obviousness," leading to the Teleflex v. KSR ruling that basically said the USPTO (and the courts) had to really start looking at obviousness as separate from newness. In response, the USPTO put out a set of guidelines, including seven "tests" for obviousness -- and many examiners seemed to make use of these tests, as more patents got rejected, with obviousness often being the reason.
Yet, these new guidelines simply delete four of the tests. So, we're back down to just three tests for obviousness, which significantly limits the likelihood that examiners will reject patents as obvious. The end result? A lot more obvious ideas getting patented, followed by a lot more gridlock and needless lawsuits and transfer payments in the market -- and a huge tax on innovation. What a shame.
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Filed Under: obviousness, patents, uspto
Companies: uspto
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Is your summary correct?
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Re: Is your summary correct?
The update seems to provide case law examples for the first three rules as teaching points but (from what I have read) does not imply that the other four rules are invalidated. Just that there have been significant rulings on the issue since that have helped to clarify the first three rules.
"The first three groups correspond directly with three of the rationales identified in the 2007 KSR Guidelines. These rationales� combining prior art elements, substituting one known element for another, and obvious to try�have each been the subject of a significant number of post-KSR obviousness decisions."
"Office personnel may use this 2010 KSR Guidelines Update in conjunction with the 2007 KSR Guidelines (incorporated into MPEP �� 2141 and 2143) to provide a more complete view of the state of the law of obviousness.
This 2010 KSR Guidelines Update provides a �teaching point� for each discussed case. The �teaching point� may be used to quickly determine the relevance of the discussed case, but should not be used as a substitute for reading the remainder of the discussion of the case in this 2010 KSR Guidelines Update. "
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Re: Re: Is your summary correct?
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Money, money, money
What incentive is there to not approve patents? None. Bad patents promote lawsuits which puts more more in their potents and the lawyers' pockets.
The only way to take down the USPTO is to find a patent that will challenge its system or the US Government directly.
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Re: Money, money, money
In a "pure" capitalist society, the government wouldn't be propping up the failing business models of private industry through the use of their legislative powers, which is the situation we have now.
The system in place is corporatist, not capitalist. Big difference.
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Re: Money, money, money
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Re: Money, money, money
No, not really. But its still possible for anyone with the go-getit attitude to be successful. I thank my lucky stars I was born in a country where I can make money if I wish.
See, choice is a wonderful thing. If I so chose, I could live in poverty and whine about how great it would be if the US was just another whiny-assed European broke socialist system where everyone shares in the failure equally. I am thankful everyday that I live in country where I can choose to do that, or press on and make a good living.
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Re: Re: Money, money, money
It makes me wonder why so many people choose to be poor.
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Re: Re: Re: Money, money, money
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Re: Money, money, money
1. The big money is not in just the application process, but in the maintenance fee schedules. More patents = more revenue for the patent office = bigger political promotion.
2. More patents = increased legal fees. Lawyers make money in the patent process, from filing to supporting to ammending claims for the companies filing the patents. Additionally, as noted, the legal process regardless of whether or not lawsuits are successful, etc. makes $$$ -- so more lawsuits / more money.
All about the money. We should just scrap this whole system and start over.
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Just to make sure I understand...
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Great news for patent lawyers!
Everyone who could have innovated and produced can now get a job as a patent lawyer, suing any innovators and producers who are left.
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"Newness" is what is subsumed by Section 102 of Title 35. "Obviousness" is associated with Section 103.
In virtually every case I have ever been associated with the prosecution turned upon Section 103. Thus, obviousness has always been at the heart of prosecution practice before the USPTO. Except in very unusual circumstances, a 102 rejection is easily traversed. A 103 rejection, however, is another matter entirely.
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/sarcasm
Remember the gorilla in the room?
http://www.techdirt.com/articles/20100714/03225710210.shtml
What is obvious today may not have been obvious yesterday, even if you paid close attention yesterday. So, always, *always*, blame the patent examiner when something you think is obvious gets patented.
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OS Shutdown.
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obvious and no one should ever criticize patent examiners for patents that are technically defensible on the basis of obviousness as long as obviousness is defined as new or unused. Further more it's evedent that patents are all non-obvious and the only reason they're ever found to be obvious is judge's not understanding the subject matter. Sure one click patents are obvious NOW but in 98 it was an invention of the highest caliber and the USPTO backs that up.
/sarcasm
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Re:
The purpose of the patent system should be to determine which advances would only occur with patents and grant patents only to those advances. An inability to properly define obviousness is a criticism of the patent system. Not every invention requires or deserves a patent and those that don't shouldn't receive one and if the patent system can't intelligently determine which inventions deserve patents vs which ones don't then I think it's reasonable to conclude that the patent system should be abolished.
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Why simply assume that some patents should be approved. Prove it.
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Feel sorry for Kappos
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inventing -not fighting
Good. For years inventors have had to fight the PTO to get their patents issued. The more essential their patents, the harder they had to fight. Allowance rates had dwindled well below historical rates. Now inventors will be able to focus their resources and energies on inventing -not fighting.
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Re: inventing -not fighting
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Do something about it
https://petitions.whitehouse.gov/petition/reform-patent-issuance-process-ensure-patents-are -only-granted-true-innovation/qNJMMSt8
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Help fix the patent System.
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Where is my patent?
They steal other people's ideas, and put their curse of a logo on it as if they are innovators. They are a bunch of crooks with lots of legal money to go around. That is what the USPTO wants, that is what the US patent system has become. Greedy bastards!
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