Test for "Obvious" Patents Questioned 172
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."
How about reforming patents all together... (Score:3, Interesting)
How about getting rid of patents all together... (Score:2)
Re:How about getting rid of patents all together.. (Score:5, Insightful)
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.
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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
2 years to deliver product, then lose the patent (Score:2)
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
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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
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How about getting rid of IP altogether?. (Score:3, Insightful)
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.
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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.
Re:How about reforming patents all together... (Score:5, Insightful)
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.
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Medical research and patents (Score:3, Interesting)
> 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)
Re:How about reforming patents all together... (Score:5, Insightful)
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?
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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
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Um, the gov't does just fine thank you... (Score:3, Interesting)
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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,
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At any rate, even if Merck turns (turned?) into a big bloated mess, they still have the capital and opportunity to snatch up a small startup with promising technology. Many, many of these small startups fail - but many are also snatched up by the bigger guys. Thus, even when the big guys get bloated and unresponsive, bleeding edge re
Re:How about reforming patents all together... (Score:5, Insightful)
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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
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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
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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
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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
Little or no evidence indeed (Score:2)
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
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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.
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I think the original idea was that without patents, companies wouldn't release their innovations into the public domain.
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Also, funding priorities will get just as screwed up with public dollars as with private dollars. Think of how much public money would get funneled into HIV, even though it is a very small problem - in terms of deaths - in the US. This is simply because HIV is "scary" compared to a heart attack or even cancer. In t
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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.
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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.
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Where I live it's the case. It may sound obvious but it's missing from US/UK legislative system.
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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?
I don't see the connection between "little guys" and "public as a whole". Maybe you can explain further.
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The issue is obviousness *before the fact* (Score:4, Interesting)
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.
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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
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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!
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Re:The issue is obviousness *before the fact* (Score:5, Insightful)
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.
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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
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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
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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
Re:The issue is obviousness *before the fact* (Score:5, Insightful)
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Copyright and patents don't offer the same type of protection, so saying algorithms are adequately protected by copyr
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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
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I agree that is not a good test of obviousness.
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
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One word: Ebay (Score:2)
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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
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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
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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.
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1. A simple (or complicated) way that works in solving some problem or is useful in some way, e.g. Metal wrapping for batteries.
2. An obvious amalgam of earlier inventions, that does not really solve any problems, e.g. knork (which is just a modified http://en.wikipedia.org/wiki/Pastry_fork [wikipedia.org] anyway )
3. A relatively simple idea (often a rip-off of earlier ideas) wrapped in obscurity just to make it open enough to make everyone cough up some money for using it. E.g. "Click to b
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#4. In widespread use for 10-20 years before the patent was filed.
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Well, maybe.... (Score:2)
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."
This is the only hope to strengthen patents (Score:2)
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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
Why even allow any patents? (Score:2, Interesting)
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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
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This is not an inherent problem in such development. This is a problem that is a consequence of laws that require the drug companies to go through a series of very expensive, and often superfluous, steps. If they were allowed more leeway in producing drugs, and consumers were allowed more leeway in the choices they made about consuming drugs, a great deal of these costs would disappear. It is also a consequence of drug companies bei
Not quite accurate. (Score:2)
My simple "obviousness" test: (Score:2, Interesting)
On a more serious note, patents shouldn't be checked for "obviousness", they should be checked for ingenuity instead.
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I wonder... How well would the following work?
If your patent is ambiguous, confusing, and not clear as to what it refers (and I don't mean just to patent lawyers), it should be legally interpreted as meaning the least beneficial thing to the filers.
Easy money (Score:5, Funny)
2. Collect royalties recursively from patent office
3. PROFIT!
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Effort (Score:2)
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?
For a more technical read on the case (Score:3, Informative)
obviousness (inventive step) has been legalised (Score:2)
Test for "obvious" problem (Score:4, Insightful)
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.
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Performing an action at a particular place or time (Score:2)
For instance, recording a music concert and burning CDs of it to sell there at the same concert.
Why not look at what patents are supposed to be? (Score:4, Insightful)
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.
[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...
Patent rewards (Score:2, Insightful)
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
The is (so far) mostly a US problem (Score:5, Insightful)
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
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It's a perfectly reasonable patent (Score:2, Funny)
Book value of "Intellectual Property" (Score:2)
Expect vested interests to dig their heels in.
Opposition quotes (Score:2)
"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
How about a yearly contest? (Score:2, Funny)
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Now, I don't think obviousness is measurable. "Foot mouse" IS VERY OBVIOUS, it just never (AFAIK) came to a mind (I admit, I taught of it this instant)
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I don't know if the PnP junction was patented (by IBM?). All of the basic math and theory for what to do with collections of switches (like PnP transistors) was well know hundreds of years before the invention of transistors. Computers composed of tubes and/or relays and/or gears all existed.
Was the fli
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