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Test for "Obvious" Patents Questioned 172

Posted by ScuttleMonkey
from the state-the-obvious dept.
bulled writes "News.com is running a story about a case coming before the US Supreme Court on testing new patents for 'obviousness'. The decision has potential to significantly impact the High Tech industry." From the article: "Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly 'obvious' combinations of pre-existing inventions."
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Test for "Obvious" Patents Questioned

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  • by pembo13 (770295) on Tuesday November 28, 2006 @03:40AM (#17013032) Homepage
    so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line. So just let the little guys benefit, and the public as a whole may just benefit some more. (I do not really consider lawyers to be part of the public - sorry)
    • At least for Software it would make a whole lot of sense.
      • by rucs_hack (784150) on Tuesday November 28, 2006 @05:59AM (#17013842)
        With the current mess I would agree. However were the current tech market not so frankly corrupt, suing for a fast buck with frivolous patents there may be some merit to software patents.

        I would think that such patents should be reserved for seriously massive innovations, not navigating a menu or button placement ffs. As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.

        We're all very familiar with his work now, but back then he was pretty much the only guy doing a lot of the work.

        Software patents are here to stay, but they're screwed up royally.
        • by squiggleslash (241428) on Tuesday November 28, 2006 @10:08AM (#17015614) Homepage Journal

          Let's pretend you're talking about inventive rather than innovative, because I suspect that's what you meant (most people do), and "He didn't actually invent it, but he was the person who first packaged it in a form that got it into people's hands" doesn't strike me as something anyone has said patents should be granted for. Patents are supposed to go to the first person to invent something and take it to the patent office, not the first person to make it popular.

          I'm not really sure anything in CP/M qualifies as massively inventive. Kildall's CP/M became popular not because it was inventive, but because it was there. It was a simple program loader with a very small library accessable to loaded applications. Many of the fundamentals in CP/M went back to libraries that came with the Intel test rig he was programming.

          Yes, many aspects of it were copied into QD-OS (better known today as MSDOS), but these were compatibility hacks rather than functionality. Things like "System call 5 writes a character to the console" (or something, I forget which call did that.) FAT was copied too, but FAT is, frankly, obvious. I'm not sure how many other operating systems prior to CP/M used the same concepts, my guess would be many, but the Unix system we know and love isn't that different - the major difference is that the filenames appear FAT's equivalent of iNodes, rather than in dedicated directory files.

          Kildall would probably have disagreed with you anyway. The guy was a programmer through and through. Despite all the anecdotes, the major reason IBM didn't have CP/M86 for the PC was because Kildall wasn't that interested in it as a project. Had he been so, it would have been released a year or two prior, and Seattle Computing's QD-OS wouldn't have been written because the need for it would have been absent. If he'd been interested, when the IBM people knocked on his door, they'd have been treated as any other OEM, rather than a group needing an entirely new product.

          Kildall was interested in the things he was working on, much more so than maximising the money he got and controlling the market. Short of doing so defensively, as you would today, I doubt he'd have patented anything, even if something as obvious and derivative as CP/M had been patentable.

        • I strongly agree. It's *possible* for a software innovation to be *truly* novel and warrant a patent, but this is extremely rare. The problem is that the patent office gives them away far too easily, and lets them be far too broad. Like you say, a patent should be for some world-chagning invention, meaning a way to keep the PTO in line would be to enforce hard limits on the number of patents granted per period so they must be judicious in deciding what deserves a patent. Also, they could test a patent b
        • Re: (Score:3, Interesting)

          by Elektroschock (659467)
          Patents are for inventions, not for 'innovations'.

          The best approach to solve the softpat problem is lobbying against them [ffii.org]. The approach was succesful in Europe and is much cheaper than any fishy patent agreement deals [digitalmajority.org].

          Maybe we need a different copyright style system for software designs. Patent law is designed for classical big industry needs, the individual inventor is a myth. No, you cannot fix patent law to serve software industry protection demands.

          Unfortunately US patent reform lobbyists go fishing red
        • Regardless of whether a patent is obvious or not, the creator should be required to provide an implementation of a software patent within 2 years or lose it to the public domain.

          The same goes for purchased patents. No implementation in a reasonable time frame, no patent.

          Limit the resale of patents. Initial applicant + 1 sale/transfer every 5 years. That will prevent the patent portfolio leeches from using patents and courts as a revenue model, because once they buy a patent, they have two years to i

        • As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.

          It seems to me that patenting massive innovations just means the vast corporations' lawyers have to work a little harder to rip you off and make billions off of your work. Either way, it probably won't be you that makes the billions. Your best hope is to settle for

      • We don't have to eliminate patents, just make it so that only individuals can hold them, and only for 5 years. No corporate ownership of patents and no passing patents on to heirs.

        How rich is a person supposed to be able to get for having a good idea?

        Same thing with copyright.

        If you think that would hurt innovation, you are underestimating humanity to your own peril.
    • by drsmithy (35869)

      so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line.

      The point of patents is to benefit the bottom line of the patent holder - doesn't matter if they're big business or and individual.

      • by SmokedS (973779) on Tuesday November 28, 2006 @05:33AM (#17013678)
        The point of patents is to benefit the bottom line of the patent holder - doesn't matter if they're big business or and individual.


        Actually, that's never been the stated purpose of patents. The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

        There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline. On the contrary, there is plenty of evidence of it actually inhibiting progress in a number of areas, the most blatant case being software patents. Patents have become a tool for the large companies that are on top to stay on top, and not to have to actually compete on the merits of their products. The basic tenet in the belief of the beneficial nature of patents is the belief that progress moves along in giant leaps of imagination, or immensely costly research, that is so rare that it needs protecting. For the most part this is just not true. Progress is slow and gradual and constantly builds on existing solutions. Patents are not beneficial in such a system.

        The most popular poster child argument for patent proponents is pharmaceutical companies. "If there were no patents, no drugs would be developed due to the great cost, and where would we be then?" they ask. This doesn't hold up under scrutiny though. Analysis of the higher cost of patent encumbered drugs and the research budget of drug companies will show you in no uncertain terms that the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs. The state funding drug research itself would also bring with it the not inconsequential benefit of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

        There are actually few rational arguments for any sort of patents, and very substantial arguments against them. Overwhelming arguments in the case of software patents. However, the companies that profit the most from the oligopoly maintaining power of patents are among the most powerful legal entities, and lobbying groups, in the world. Just about everyone except for patent attorneys and mega-corporations with huge patent portfolios oppose software patents. In spite of this they almost got legalized in the EU, and the proponents of them are trying again from a different angle now. Frustrating to say the least.
         
        • Re: (Score:2, Informative)

          by Kattspya (994189)
          Here's a link to a study that supports the OP: http://www.dklevine.com/general/intellectual/again st.htm [dklevine.com] (PDF-warning)
        • > The state funding drug research itself would also bring with it the not inconsequential benefit
          > of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

          In most of the civilized world even the "private" medical research is tax funded, as a large part the medicine is financed over taxes. Cutting out the middle-men would be an obvious way to optimize the system for two reasons: 1) Public researchers have a much larger liberty to (and are strongly encouraged to)
        • by MightyYar (622222) on Tuesday November 28, 2006 @08:25AM (#17014636)
          I have a few issues with this reasoning:

          If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down.

          Second, maybe I'm too cynical, but I see zero evidence that a government body could do as good a job with drug development as the free market. There are many, many failed drug companies - they took a risk on a new technology and failed. Politicians would be under fire for "wasting" money if they went down this path, and so government drug development would proceed down the safest path, where the employees and politicians would be as concerned about covering their asses as anything else. Not to mention that government departments tend to be chronically underfunded, full of corruption and nepotism, and very slow to react.

          I think that there needs to be an additional test for a patent: would it become a trade secret if it weren't disclosed in a patent? This would allow a novel manufacturing process to be patented (even the software controls!), but would prevent things like Amazon one-click. Presumably, Amazon would have done the one-click thing with or without a patent system... so why should they get the protection? How does society benefit? Many of these software patents are asinine because they are right out there in plain view, and there is ample incentive for the companies to do them without the patent system. Apple's "look and feel" is a prime example. Does anyone argue that Apple now spends less time on look and feel since Microsoft won that case?
          • Re: (Score:3, Insightful)

            by russ1337 (938915)
            >>"If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down."

            Once that first product 'pops out', reverse engineering kicks in. Take the 3M approach - they know their product will be copied so aim to be first and fasted to market to make their cash quickly by being innovative ahead of their compe
            • by MightyYar (622222)
              That's fine for certain products, but let's use Damascus steel as an example. We THINK we know how they made it now, but the secret was lost for over 300 years. This illustrates how reverse-engineering is not always sufficient to recover a "trade secret". If someone in India had patented Damascus steel back in 300 BC, the patent might have expire by now :)
              • by jackbird (721605)
                ...but the mine with the properly contaminated ore would still be exhausted, and we still wouldn't be able to make any.
                • by MightyYar (622222)
                  Sure, the mine would have still been exhausted. But without knowing the process, we can't even be sure if we have it right even if we re-create the minerals in the "proper" ore, or if we find another deposit that we think is about the same. If we had a process, we could test our ore combinations against the known process to see if we get the proper result. Right now we just have to theorize.
          • Many, if not most drugs are created based on studies and research done by the Government. The Government does the really expensive work, and release the research for free. Then drug companies take that and polish it up into a drug. Most of the cutting edge stuff gets done at Universities on the public's dime, because drug companies won't fund something that isn't going to be profitable in more than 7 years.
            • by MightyYar (622222)
              Universities are not funded by the government. Even so-called "state" universities rely heavily on private and corporate grants and donations. In fact, a major trend in the last 20 years has been the partnering of universities and corporations, often with a commercial spinoff from the resulting research.

              The federal government certainly does subsidize drug research, and I'm not arguing otherwise. Only a fool would argue that the drug industry is completely left to capitalist forces - it is heavily regulated,
        • by LaughingCoder (914424) on Tuesday November 28, 2006 @09:16AM (#17015040)
          ... the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs.
          Are you serious? Remove the profit motive? State funding? Have you seen the condition of public schools in the US (hint, quality is awful and costs are sky-high)? Have you seen the condition of the roads and bridges? How would you compare the efficiency, cost-effectiveness and customer service of the US Post Office with Fed X and UPS? Let's talk about airport security. Or border security. Paragons of efficiency? While we're on the subject, how well run is the US Patent Office? You really think the government would do a better job of drug R&D? That flies against *all* empirical evidence of the last 500 years. No, if the state developed drugs we'd have $20 aspirin tablets and not much else.
          • How would you compare the efficiency, cost-effectiveness and customer service of the US Post Office with Fed X and UPS?

            Customer service at the USPS has always been excellent in my experience. And given they're covering the costs while charging a pittance for delivery, I'd be surprised if their efficieny or cost effectiveness is worse than the other two.

            In my experience, they deliver faster than UPS Ground too. I've never used FedEx ground so can't comment on that.

          • cost-effectiveness and customer service of the US Post Office with Fed X and UPS

            I don't know... less than 50 cents for someone to carry a piece of paper across the country in a weeks time... that seems pretty cost-effective to me.

            In reality, a lot of scientific research is done at the university level. It's overly simplistic to think that we could simply abolish patents and, without the profit motive, get the same results. It's also overly simplistic to think that, if you drop the patent system, the hum

          • by AK Marc (707885)
            Have you seen the condition of public schools in the US (hint, quality is awful and costs are sky-high)?

            Costs are *much* lower than private schools. The cost per student in public school for educating that student is about half of the private school average. Or, look at Social Security. It may not have the best system for collecting and distributing money such that it is controversial, but the costs involved are much lower than private investment fund management. Compare the costs of SS to any mutual
          • by asuffield (111848)

            ... the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs.

            Are you serious? Remove the profit motive? State funding?

            The US is abnormal in that it doesn't do this (instead, leaving it to the medical insurance companies to finance research - the insurance companies pay for any research that looks likely to reduce costs of treatment, they don't care ab

        • Re: (Score:3, Insightful)

          by drsmithy (35869)

          Actually, that's never been the stated purpose of patents.

          Nor does it need to be for it to reflect how they work.

          The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

          The point of a patent is to impose artif

        • There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline.

          Yes, little or no real evidence. Other than the whole economy as it stands today, with the recent decades of geometic growth -- unique in history -- in most sectors, including particularly the technological disciplines. If you insist that patents were irrelevant to that, you'll need some awfully compelling data.

          Of course patents ge

        • Re: (Score:2, Funny)

          by unknownideal (881232)
          In Soviet Russia... Oh yeah, that's right, Soviet Russia no longer exists. So much for leaving it to the state.
        • Re: (Score:2, Funny)

          by evil_Tak (964978)

          The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it.

          You must not be referring to the United States government.

        • by PsiPsiStar (95676)
          The basic tenet in the belief of the beneficial nature of patents is the belief that progress moves along in giant leaps of imagination, or immensely costly research, that is so rare that it needs protecting.

          I think the original idea was that without patents, companies wouldn't release their innovations into the public domain.
    • Re: (Score:3, Interesting)

      by fyngyrz (762201) *
      I do not really consider lawyers to be part of the public - sorry

      Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades. Speaking of the US, as a US citizen. Not familiar with other systems. Entirely too familiar with ours.

      • Re: (Score:2, Insightful)

        Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades.
        The legislatures aren't out of control. The question is, whose control are they under?
        • by fyngyrz (762201) *

          You're quite right. My statement was based upon the idea that if they're not under the citizen's control, they're out of the constitutional realm of legitimate operations. But of course, they're under the complete and direct control of PACs and corporations. This is a miserable state of affairs for the citizens.

      • by Ours (596171)
        Some other systems have a very nifty obligation to make common sense prevail.
        Where I live it's the case. It may sound obvious but it's missing from US/UK legislative system.
    • by soft_guy (534437)
      Big companies have little incentive to use patents in any other way except that benefits their bottom line.
      I suppose small companies have an incentive to use patents to create rainbows and help fluffy bunnies.
    • Big companies have little incentive to use patents in any other way except that benefits their bottom line

      A patent is a government sponsored monopoly on an invention. They are a means of improving your bottom line. What else are you expecting them to do?

      So just let the little guys benefit, and the public as a whole may just benefit some more

      I don't see the connection between "little guys" and "public as a whole". Maybe you can explain further.

    • Big companies have little incentive to use patents in any other way except that benefits their bottom line.
      Gah! The big companies might make more money! Horrible! Seriously, I'm by no stretch a fan of patents as they are today -- but arguments like this aren't going to convince anyone who needs convincing.
  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Tuesday November 28, 2006 @03:45AM (#17013048)
    Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

    But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.

    Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

    Ask anyone who has submitted a patent application whether they felt their patent was frivolous. I imagine you'd find the vast majority of them holding the belief that they did something novel.
    • Re: (Score:3, Insightful)

      by MemoryDragon (544441)
      The once you have seen it and then it is obvious argument has been brought to the table ad nauseum, and no I do not buy it. First of all most patents filed have prior art to a big degree, secondly, what has happened in the recent past is that everything under the earth has been patented, third, once you face a problem and bring it in front of 100 guys to solve it 20 of those probably at the same time will find the most obvious way. So obvious really is obvious in most cases!
    • Re: (Score:3, Insightful)

      by mpe (36238)
      Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

      Or maybe the first 10-100 people to think of it either thought it was so obvious that it wasn't worth trying to patent it or they wern't in th
    • Re: (Score:2, Insightful)

      by DMiax (915735)

      There's also the inverse procedure: everyone thinks something is obvious then comes One that says "it is not!" then patents it, despite the fact that he did not invent it and it is common practice or technology.

      Am I the only one who remembers an attemp to patent the wheel [slashdot.org]?

      Or Microsoft patenting desktop pager [slashdot.org] and XML [slashdot.org]?

      Most patents do not even come from the guy that invented the technology, funded research, or at least used it!

    • Re: (Score:3, Insightful)

      Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.
      No, more often it's because something is so obvious, any sane person (who does not happen to be a lawyer) wouldn't even think it is patentable.
    • But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.
      So one guy has a brain fart and now he can sit on his ass and impede human civilisation because of it? What ever happened to trade secrets? Copyright?

      Patents are not about encouraging "innovative" ideas. They are not about rewarding research. They are about granting monopolies to people who grease enough palms. That was their original purpose, and that, beneath all the layers of bullshit, is still their purpose now. To grant monopoly; unrestricted, pure and total.

      If you believe otherwise, then the marketo-psychic dominator troop have earned their pay today.
      • Re: (Score:3, Insightful)

        by SatanicPuppy (611928) *
        The real point of patents is to encourage inventors to make their inventions public, with the understanding that they will be allowed to profit off them for a reasonable time, and then the public will own that invention, and it won't be lost as some random trade secret.

        The alternative to patents is not complete freedom of information, it's utter and complete secrecy. Companies would spend a fortune obfuscating their own code, and doing everything they could to prevent reverse engineering. You'd have to sign
    • Re: (Score:2, Interesting)

      by eklitzke (873155)
      I agree with you completely.

      The amount of things that we take for granted is just enormous. Let me explain. Right now you are undoubtedly using a multitasking operating system, meaning that you can run more than one process at once. It is really non-obvious that such a thing is even possible, let alone can be done efficiently. For those of you who don't know how it is done (and I bet even on Slashdot, most people do not), how would you overcome this problem? How are you going to make sure that once the kern
      • by Alioth (221270)
        It's not really obviousness - it's got to be something that someone "ordinarily skilled in the art" wouldn't come up with. While how multitasking on a modern PC might not be obvious to the majority of people (possibly including yourself - applications on a modern OS do not give control back to the OS, the OS takes control back, that's why it's called pre-emptive multitasking), the idea of multitasking is probably pretty straightforward to anyone ordinarily skilled in the art of kernel development, or indeed
      • by hey! (33014)

        Right now you are undoubtedly using a multitasking operating system, meaning that you can run more than one process at once. It is really non-obvious that such a thing is even possible, let alone can be done efficiently.

        I'm not sure this claim would hold up under historical examination.

        "Obvious" means "obvious to a normally skilled practicioner". Think about the problems of computer design in the 1950s and 1960s. Computers were built from discrete components, which made computers slow and costly. The com

    • by LordLucless (582312) on Tuesday November 28, 2006 @06:35AM (#17014056)
      The thing is, ideas aren't patentable. Methods are. The test for obviousness should be, given the specs, can another programmer come up with the same implementation. For example, if someone said "invent a system that allows one-click purchasing", and the programmer can come up with the method described in the patent, the patent should be invalid as obvious. On the otherhand, if you say "an algorithm for compressing audio data", and the programmer can't derive MP3 compression, then that should be a valid patent. Note that patents don't cover the idea, just the method. A patent on "a method for compressing audio data" doesn't stop any other compression scheme - just the particular one outlined in the patent. Of course, bundled with this needs to be a way of preventing submarine patens a la UNISYS' LZW/GIF.
      • Re: (Score:3, Interesting)

        by mark-t (151149)
        The problem with patenting methods that are implemented by software, however, is that all algorithms are simply logical steps... the fact that these steps are simulated at an abstract level within the cpu cycles of a computer is irrellevant, logic is an intrinsically mental construct, and they are ultimately just mental steps that ultimately involve no more than the appropriate sequence of logical AND, OR, and NOT operations on binary digits. Mental steps are not supposed to be patentable, so algorithms,
        • Re: (Score:3, Insightful)

          by LordLucless (582312)
          You could say the same about any physical invention; after all, an internal combustion engine is just a series of interactions between fundamental physical forces, just as an algorithm is just a series of logical operations. A physical device involves transforming and moving energy between its components, an algorithm applied to a computer involves shunting electricity around various gates.

          Copyright and patents don't offer the same type of protection, so saying algorithms are adequately protected by copyr
      • by Moofie (22272)
        But, you see, that's not how patents actually work. These patent abusers ARE patenting the idea of "one click ordering", or "email over wireless", or "a pretty small keyboard you work with your thumbs", or (going old school) "longitudinal flight control of a powered aircraft". We're NOT talking about specific implementations. Any way of solving these problems has been deemed to be infringing on these various patents.
        • You're wrong. Have a look at any patent, and after the abstract that gets everyone up in arms, there's a specific list of claims that actually specify what is being patented. And those claims always specify a method - even stupid ones like the "swinging sideways on a swing" patent. If you do the same thing, but don't do just one of the steps mentioned in the patent, you're not infringing.
    • by idlake (850372)
      Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

      Actually, the usual case for software patents in my experience is that people say "hey, I have been using that for years, how in the world can anybody get a patent on that".

      Furthermore, granting someone a patent costs society a lot; we should err on the side of granting too few patents, not too many, and the burden of proof that something is "unobvious" should be on the person filing the paten
    • by hey! (33014)

      Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

      I agree that is not a good test of obviousness.

      Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point?

      Usually because the conditions under which the solution is practical or necessary haven't occured up to that time. In the late 90s and earth 00s, there were a ton of software and business method patents of the form "use of

    • by ProppaT (557551)
      The point you're missing is that some concepts are so simple that people do them and never think to copyright the idea/concept because it doesn't warrent a patent. Then someone, lets call him "Mr. Obvious," comes up and says "well hell, no one's patented this...lets see if it'll go through." Even though it's something obvious that people have been doing for ages, it goes through the patent office and this guy now has receives royalties on the idea for anyone who can't prove that they were doing this all a
    • who patented using the internet for online auctions. This isn't just obvious, it's using the a tool (The Internet), for it's intended purpose (near real-time communication). It's like patenting using a hammer to pound nails. Amazon's one-click is the same. I mean, who'd of though using cookies to track user state? Genius!
    • by Jerf (17166)
      I'm going to zig to every other replier's zag.

      Try this objection on for size: I'm supposed to be able to read a patent and implement the device. I recently saw Mythbusters do just that for a couple of old patents. But software patents by my estimate get you far less than 1% of the way to an implementation.

      A patent on the web would describe "a client machine that requests content from a server, and the server receives it." A series of further elaborations might be made mentioning that it could be cached, cou
    • by soft_guy (534437)
      In software new things mostly happen because of hardware getting cheaper. Cheaper hardware allows us to throw more resources (storage, memory, processor) at a problem that previously couldn't be solved with software due to cost.
    • I don't agree with you. I used to, but there's an issue with the argument. If it's simple, the chances are someone will think of it. Just because it's non-obvious doesn't mean that only the "inventor" would have thought of it independently. And if it's simple, the chances are that the majority of people who think of and use it will not believe it's patentable. And they'll rely upon that in their assumptions afterwards.

      And they'll get screwed. Because, as we all know, independent invention is not a defens

    • The solution stared at them in the face, but no one ever sat down to think it through.

      That's the key thing right there. If simply sitting down to think it through will (for a competent expert in the field) usually produce a given solution, that solution is obvious.

      Especially with software development, if you let every little creative step be patented, no-one will ever be able to do anything. By the standards of some of these patents, I come up with four or five amazing new inventions every time I sit do

    • We have this thing called engineers. They are trained to solve this exact class of design problems. That's their job. If you call every little step they take in performing their job an "invention" and give the company that they work for a patent on it, well... that's absurd.

  • Like most actions that measure, while things look tidy on paper, applying them is where the trouble shows up.

    As the example going begging here....just who gets to decide what constitutes 'obviousness'...?

    Because at the end of the day, we're going to be left with only those things that are SO obvious they don't need to be pointed out, and there goes the process.

    "One man's window is another man's door...one man's ceiling is another man's floor - one man's princess is another man's whore."
  • We so desperately need this! When you can get a patent on anything, it makes patents in general worth less. This is why companies now collect them as armor. Hopefully the court will make them much harder to get. The effect will make the patents that are granted much more valuable. No truly innovative company can be against this. IP lawsuit companies on the other hand...
    • by donaldm (919619)
      I agree that patent reform is way overdue but unfortunately there are too many corporations who will oppose it. A simple example of how a lawyer will present his client's case to a Judge is to question what is "Obviousness" and I can see this dragging on for years until these people get sick and tired of the money they will be given to oppose fairer patents.

      A good start would be to abolish any patents based on maths and logic (ie. software) but again there are far to many companies that would feel threatene
  • Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product. The market suffers and the consumer suffers. There is less competition, which means the company owning the patent doesn't have to make it's product so much better. The only possible upside is that it would give inventors an incentive to invent things. Though why not just give them say 10% of what the product makes for the next 5 years or some other similar system?
    • Re: (Score:2, Insightful)

      by langelgjm (860756)
      Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product.

      That is exactly the point - a government enforced monopoly for a limited period of time. Without patents, any company could just come along and rip off your design, into which you poured time and money with R&D, and begin selling it, most likely undercutting you on the cost, since you are trying to make up your expenses.

      The problem is not the idea of patent
  • My test is: get three experts in the field of application of the patent, have them read the title of the patent. If any of them guesses the method employed in the patent, send the application to the bin.

    On a more serious note, patents shouldn't be checked for "obviousness", they should be checked for ingenuity instead.
  • Easy money (Score:5, Funny)

    by tttonyyy (726776) on Tuesday November 28, 2006 @04:07AM (#17013192) Homepage Journal
    1. Patent "obviousness" test algorithm
    2. Collect royalties recursively from patent office
    3. PROFIT!
    • Re: (Score:2, Funny)

      by DigitAl56K (805623)
      Unfortunately there is already too much recursive prior art. See here [slashdot.org].
      • by tttonyyy (726776)
        Unfortunately there is already too much recursive prior art. See here [slashdot.org].
        You've overflowed my stack, you insensitive clod!
  • What about if the inventor has to show proof about his effort which made his invention possible? I mean if his invention is just a simple idea (like the metal wrapping of batteries in the article) with no real effort behind it then it is an obvious idea.

    The patent system compensates the inventor for his time and money to make the invention. If there are no such things behind an invention then what the patent system compensates for?
  • by almost entirely lega (1029988) on Tuesday November 28, 2006 @04:24AM (#17013268) Homepage
    http://www.law.com/jsp/article.jsp?id=116463689942 5 [law.com] is the law.com/Legal Times article on KSR International v. Teleflex, which will be argued before the Supreme Court today. As the article points out, depending upon how wide ranging a decision the Court issues, this case has implications for millions of patents, many of which have been considered unassailable, having stood up to years of attacks.
  • Because people were continuously looking for arguments why 'a person having ordinary skill in the art' would not arrive at the invention. And apparently, lawyers/patent attorneys were smarter than judges in digging up arguments why something would NOT be obvious. In the end, it currently boils down to the person skilled in the art really requiring an incentive to combine (with neon signs indicated almost) two teachings for something to be not obvious. Little bit to far on, I'd say (even as a (non-US) patent
  • by Dekortage (697532) on Tuesday November 28, 2006 @04:34AM (#17013312) Homepage

    From the article: "Some say the lax rules have fueled the rise of patent speculators--disparagingly known as "patent trolls"--who make a living off predicting those incremental changes to existing high-tech inventions, landing patents and then going after companies for infringement."

    This seems to be one of the real problems with the patent system: abuse. If you can predict the incremental changes to technology, then it suggests some kind of obviousness, no? Perhaps we need a "business reality check" test for patents: if you don't make a serious attempt to commercialize your patented idea with X number of years, then your patent dries up (or at least your potential damages are capped at Z number of dollars). The patent system should exist to protect ideas, not to line pockets with gold.

    • by seriv (698799)
      It seems like this test is on the right track. I am not familiar with the current considerations the patent office makes when reviewing a patent application, but it seems like the patent office should review how much work the inventor(s) actually did on the area of research to which the patent applies. I think this test would bring the patent back to its true definition.
  • Will this affect patents that cover taking an action (either patented or public domain) at a particular place or time?

    For instance, recording a music concert and burning CDs of it to sell there at the same concert.
  • by mjs0 (790641) on Tuesday November 28, 2006 @04:46AM (#17013374)

    At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

    The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.

    There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

    1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
    2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

    [Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

    Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)

    Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

    So here is my strawman proposal...

    • Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
    • Institute a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities rather than legislating them as monopolies is what is needed and far more in keeping with a truly capitalist approach to this, i.e. let the market decide if the innovation is valuable. It would avoid the negative effect of a making these trade secrets patentable, which actually makes innovation in related areas harder to ach
  • Patent rewards (Score:2, Insightful)

    by GnuDiff (705847)
    Assuming for a moment that all patents (even software) are valid, there is still a basic problem with the patent system.

    The ultimate goal of a patent system is to benefit the society by encouraging invention. It does this by stimulating creative individuals. It seems that the individuals can now reap rewards, which are not proportionate to their inventions.

    Let the potential reward for a patent should be, for example, at the maximum ten times the investment costs for the invention; after the inventor gets th
  • by Terje Mathisen (128806) on Tuesday November 28, 2006 @04:48AM (#17013388)
    In most of the rest of the world, the required 'patent step' is significantly higher than in the US, where it seems to have been reduced to 'anything that at least some first-year students might not have thought about immediately'. :-(

    About 10 years ago I was asked to do patent reviews on a group of 10 patents which company A would like to use to sue company B:

    Of those valid US patents, 4 were really, really obvious, i.e. more or less the only reasonable way to solve a particular problem. AFAIK this means that the patent is automatically invalid, right?

    The next group of 4 all consisted of taking a standard textbook algorith, without _any_ additional tweaks, and implement it as a VLSI chip.

    The final 2 patents actually covered somewhat neat ideas.

    Terje
    • by Alioth (221270)
      The USPTO knows it, too. A couple of years ago (unfortunately I can't find the article), someone from the USPTO said that they had a name for actually innovative patents - "pioneer patents". They said only 5% were "pioneer patents" - the rest were really not worth much in terms of innovation. Perhaps if the USPTO would only grant patents to these top 5% we'd be in a lot better shape.
  • I intend to fiercely defend my "On" switch patent. There is nothing obvious about pressing an "On" switch to start a computer as thousands of computer illiterates can attest to. I also plan to defend my plugging computer into wall socket patent. Thousands of other techically challenged have been aided by my patent on this process. My "On" switch patent on monitors is still pending but hopefully that should be approved any day now. It's horrible and unamerican challenging my right to patent everything in sig
  • The article skims the big vested interests who have an interest here. There are many, many big corporations whose book value is justified by the monetary value of their patent portfolio - or "Intellectual Property" as most of them call it. Any changes in the patent validity could have a huge impact on their share prices.

    Expect vested interests to dig their heels in.
  • A quote from the end of the article:

    "I don't think U.S. industry is going to stand for a huge cloud being placed on their valuable patent portfolio," said Mossinghoff, the former patent commissioner.

    Yet Microsoft, Google, Oracle, Intel, and Cisco, companies with immense patent portfolios are all completely behind changing the rules.

    I also got a kick out of the opponents who claim this will ruin the "predictability" of the patent request process. I suppose knowing you're going to get a rubber stamp is predic
  • I say make it like the olympics. Each category gets say 50 patents/yr. A category would be say pharma, or chips, or fusion, etc. At the end of each year, the PTO, looks at all the submissions for the year and the top 50 get the patents. This would stop the dumb ones, (they'd never win) & make the good ones get even more noteriety. After all, one of the goals of patents was to make the technology disseminated. I ask, does ANYONE review patents for "Hey thats a great idea, I'd like to license and manufact

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