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Interview With 'Idiot' Behind Key Software Patent 223

Posted by CmdrTaco
from the hate-when-that-happens dept.
An anonymous reader writes "Last week, an appeals court ruling opened the door to making it easier to kill software patents. It turns out that the guy whose name was on the actual patent didn't even realize it was at the center of the debate, and doesn't like software patents very much. 'So I was thinking — great they invalidated software patents, lets see what crappy patent written by an idiot they picked to do it — then I realized the idiot in question was me.'"
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Interview With 'Idiot' Behind Key Software Patent

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  • From TFA: "... because the USPTO focuses much more on "prior art" (i.e., "is this new?" rather than, "is this obvious?") all sorts of obvious stuff gets patented."

    I couldn't agree more.

    Except that both the article author and you don't understand what prior art and legal obviousness are. That prior art exists does not mean that something is not new: prior art is any relevant art in the field that was published or publicly available prior to the filing date. RFC 793 (TCP) is prior art for RFC 2460 (IPv6) because it's in the relevant field (networking protocols, albeit a different layer) and was published earlier.

    What you and the article author think prior art means - "is this new" - is actually whether an invention is novel under 35 USC 102. An invention is not new if a single piece of prior art discloses each and every element in the claimed invention.

    Obviousness, on the other hand, means that while a single piece of prior art doesn't disclose the whole invention, multiple pieces of prior art can be combined to teach or suggest each and every element of the invention. In other words, if the patent application claims "A+B+C+D" and no one has ever done that before, it's new... but if a prior art "A+B" exists, and prior art "C+D" exists, then it may be obvious to combine those two pieces of prior art to get "A+B+C+D" and the invention is obvious.

    Why this is important is because, by misunderstanding that art has to be prior, even for the purposes of obviousness analysis, you're asking the wrong question... Essentially, you're asking whether, in hindsight, the innovation was too trivial or minor to be awarded with a patent. But that's improper - almost everything is obvious in hindsight. That's why the patent office has to rely on prior art to show obviousness - they can't just say, "eh, I think this invention is obvious." Rather, they have to explicitly list the prior art references that can be combined to teach each and every element of the invention. If they can't find one - if, "A+B" exists, and "C" exists, but there's no art for D, then A+B+C+D can't be obvious except in hindsight.

  • by LordNimon (85072) on Wednesday August 24, 2011 @11:23AM (#37191700)

    How far do you think you would get in the interview process if you said, "The reason I want to join the patent office is so that I can stop stupid patents from being accepted"?

All life evolves by the differential survival of replicating entities. -- Dawkins

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