Supreme Court Weakens Patents

ajakk writes "The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine whether a patent is obvious. The Court ruled that the Court had looked at obviousness in a "narrow, rigid manner." This should allow patents to be more easily invalidated because they are obvious."

Now everyone will RTFA

Now that one click is not patentable...

Next step

Stop allowing patents on what is *obviously not patentable, e.g. mathematical algorithms and software

Re:Next step

I'm opposed to software patents, but not for reasons of obviousness. Rather, given that the purpose of patents is to spur inventors to invent, disclose the workings of their inventions, to bring those inventions to market, and to have the least burden on the public in terms of what they can't do, I think that software patents are inappropriate. There are other incentives to do these things besides the incentive of a patent. In the case of software and business methods, I think those other incentives are quite strong; strong enough that those fields would continue to thrive without patents (as they did until fairly recently, when patents came onto the scene in those fields) and that they'd actually do better, in fact, without the chilling effect on the market that the patents cause.

If someday those other incentives diminish, we might want to have patents there again. Certainly we should keep an eye on this. But for now, I think that we'd see much more invention, disclosure, and bringing-to-market without the burden of patents than we have now.

Does this argument satisfy you? Better still, would you agree with it?

Re:Next step

I have no qualms with software patents per-se. However a better way to handle them I believe, would be to say, that provided the provider recieves no financial recompensation direct (i.e. sales) or indirect (i.e. support), that a software patent cannot be used against a software provider.

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software. Now if a company got ahold of this software, and tried selling it or a set of software containing it - then that company could be held responsible, and could be required to pay royalties.

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

Re:Next step

That doesn't negate any /copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software.

Hmm. The problem I see is that one can't copyright an algorithm, so by extension there would be no restriction on wholesale "theft" of software. So any patented software out there would be completely vulnerable to pirated copies under a different trademark.

Plenty of people see this as the best-case scenario, since "information wants to be free". However, in practice, this would mean that there is almost zero financial incentive to produce new innovative, software outside of the service revenue model.

I think it's tough to find a balance between "promoting the useful arts" and restricting innovation via patent lockdown, but allowing free-as-in-beer use of patented materials destroys the entire patent system for software, since there is almost no unit cost to redistribute software. Is annhiliating the patent system for software desirable? I don't know, but I do know that I don't wish to discuss it on Slashdot (been burnt one too many times).

Sorry to be so long-winded, but I feel that what you're advocating would result in the wholesale destruction of the patent system...

One last thing...

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

So what you're saying is that anything produced digitally is not novel?

Re:Next step

No, a patent recognizes the right to an invention

Well, given that a patent is a right to prohibit other people from practicing it, how can someone have a natural right to stop others from doing something which they do have a natural right to do? Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.

how can you come back and say that you don't have the right to the product of your work

You do not have a natural right to stop other people from using your invention. But they might give you a right over them which permits you to stop them. They're only likely to do so, however, if it is in their interest.

Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.

And since patents are not 'all things' then there's not much of a problem with that. Just because patents are necessarily utilitarian doesn't mean that everything has to be.

Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.

Basic economics tells you that more incentive creates more production

Only if your basic economist doesn't look at the big picture.

Let us imagine that we have a factory which makes widgets. Let's say that you work for a widget factory, making widgets, at $10 for each widget you build. The factory could presumably incentivize you to make more widgets by paying you $20 for each widget. After all, you want that extra money, right? Well, what if they paid you $10 million per widget? Is that a million times more incentive for you? Are you going to work a million times harder and faster?

No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two. Money is more valuable to people who haven't got it than it is to people who do. A very poor person cannot afford to pass on a job. A very rich person can sit around unemployed and still live comfortably. Each additional dollar has less utility than the one before it. We have progressive tax codes for similar reasons.

Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.

So no, while we are dealing with an issue of how much incentive to add to the varying levels of natural incentive already present, adding more incentive is not a good plan. First, because excessive incentive accomplishes very little as opposed to a modest incentive, which accomplishes a lot. Second, because the public has to bear the cost of this incentive, and since they want the greatest benefit to them, that means the most benefit for them with the least cost -- and thus the least incentive that yields the greatest benefit.

So if you could get 90% of the invention for 50% of the cost by halving incentives, then that would probably be a good idea. It's nearly as good as your current situation and far cheaper.

In extreme cases, patents can even have a negative incentive effect. This is because, like many monopolists, patent holders are rent seeking. They will try to expand the scope and duration of their patent so that they can drive off or swallow up their competitors. In those circumstances, competitors often prefer to direct their efforts elsewhere than to bother.

Re:Next step

algorithms and software (just a bunch of algorithms ) are just representations of a mental process.
As soon as you allow them to be patented you make thought itself against the law.

Re:Next step

I'm not really sure what you're getting at here. Algorithms are no more representations of a mental process than heat engines or ASIC chips. Algorithms do require a precise interpretation of mental processes, but then again so did every invention ever conceived. In fact, algorithms developed to leverage the way a computer works may have almost nothing to do with the corresponding mental process.

For example, take a simple algorithm which decides the next best move in a chess game... do you really think that the standard mental process is to recursively examine the next several moves and potential counter moves for a given board layout. Similarly, is the typical mental process for using language based off of some well-defined CFG?

Algorithms are designed according to the availability of several functional units not offered by the human brain. Software based off of mathematical algorithms exploit the availability of an ALU and/or FPU. Hardware might even be developed to accelerate frequent, specific tasks required by software (such as designing an accelerator to perform matrix multiplications) in which case the software is optimized according to the availability of such hardware.

The truth is that, despite some superficial similarities, both the underlying design and functionality of a brain and computer are quite different and serve different purposes. To argue that there is no difference in the way each is used (which is what you are saying when you claim that software really isn't any different from thought) is to ignore the very structure of a computer.

Here's an argument for ye

Over 90% of software innovations are incremental steps on the existing set of best practices and commonly-used abstractions. If this base is screwed up by a bunch of patents, they defeat their purpose and hamper, rather than encourage, innovation.

If you live in America, you won't have to go far for an example. If you live elsewhere, then go to America and then you won't have to go far for an example.

Re:Next Step

Suppose Alice patents the FOO algorithm. If Bob wants to use it in a piece of software he's selling, he obviously needs a license from Alice to use it. But since "exclusive Right to their respective Writings and Discoveries" has been taken to include non-commercial use, what else can't Bob do? Can he implement it in free (gratis) software? Can he use the algorithm in code he writes, but doesn't distribute? Can he perform the algorithm himself? Can he be paid to do so?

Since, as a sibling post stated, an algorithm is just a thought process, it's not really something to which exclusive rights should be granted.

Most of the software patents we see these days don't play by the rules as it is. Either they don't do the full disclosure that is supposedly required (really, doesn't it seem odd that a product can be both patented and a trade secret?), are trivial or obvious combinations of existing things, have a large body of prior art, or some combination of the three. Software patents that do follow those rules are essentially patents on algorithms (i.e. sets of instructions on how to perform some task or calculation).

The proper domains for proprietary software are trade secret for closed source code and copyright for open source code.

The problem is how we handle them.

I'm of the opinion that software patents are not necessarily horribly bad or wrong, at least not moreso than any other kind of patent, but it's just that the way they have been implemented currently is so far from ideal that we'd be better off eliminating patent protection from software entirely than sticking with it.

What has traditionally been patentable are particular methods of solving problems. E.g., the sewing machine we're familiar with today (with two interlocking threads, one in a bobbin, etc.) is one way of solving the "how do we attach two pieces of material together" problem. It's (or rather, was) a novel solution to the problem, it was non-obvious, and it was particular. That's an example of a pretty good, justifiable patent. (Also because it's not easy to protect by other means -- once you see a sewing machine and take one apart, you realize immediately how it works and it's trivial to re-implement it, but if you hadn't ever seen one it's not obvious that two running threads is the way to do it, hence why it took so long to be invented.)

I'm not sure that there is a good argument for preventing people from patenting the solutions to problems, where the form of the solution happens to be microcode, in the same way that the form of the solution to the sewing-machine problem was milled pieces of steel.

But the problem arises when judges and patent examiners aren't skilled and selective about what's patentable. It's much easier, with software-based inventions, to get overbroad patents that negatively impact invention; rather than patenting a particular solution, what gets patented are entire classes of mathematical functions, or all possible software implementations (solutions) of a given problem. That would be like getting a patent, not on a particular sewing machine design, but on all sewing machines generally, or even "any machine for attaching two or more pieces of fabric together."

The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to be patented, and it ought not be protected under Copyright (unless we're willing to define it completely as "speech" with all the freedoms that entails) -- but that they're typically of very poor quality, shoddily researched, and overbroad.

For this reason, I think the Europeans have done a good thing in just avoiding the issue entirely, because the cost of overbroad patents on innovation is far worse than no patents of a particular type at all. (I think this is trivially obvious but there are a lot of historical examples where overbroad patents have been problematic and basically stymied development that was otherwise ongoing -- the old internal-combustion patents are a prime example.)

We have the legal framework to deal with software, but unfortunately we just haven't used it correctly, and until we're willing to do it correctly -- and that means we're going to need to apply a lot more resources to the task of ensuring that patents are novel, non-obvious, narrow in scope, and deserving of protection -- they're a lot more trouble than they're worth.

Re:The problem is how we handle them.

> The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to
> be patented, ... -- but that they're typically of very poor quality, shoddily researched, and overbroad.

It's more fundamental than that. I understand that you're trying to find a middle ground, but there is none (at least none that is "obvious":-]). It's a

Here are four things to consider:

(1) How many people actually look at patent to come up with ideas? If no-one does, then how is it helping with innovation? What exactly is the purpose of software patents other than a way for lawyers and patent trolls to get paid for disrupting innovation?

(2) If I independently discover/reinvent the patent, then why should why should I have to pay someone else for the privilege of using *my* idea? Reinvention has nothing to do with obviousness. Sometimes the time is right for non-obvious inventions. Examples of this indepentent invention/rediscovery include quantum mechanics, light bulb, telephone, combustion engine, airplane, television, transistor, and integrated circuit. See http://goliath.ecnext.com/coms2/summary_0199-61065 42_ITM [ecnext.com] for a fuller description.

(3) Relating to (2), suppose you allow independent reinvention as an exception. What happens if I want to tell people about *my* idea for free? I can't (and may get sued if I do). Free speach and society loses.

(4) Software patents are supposed to protect "the little guy" but since big corps can afford to have millions of patents, it's almost certain that they have something that "the little guy" violates (or may potentially violate) and force "the little guy" to cross-license, enabling the big corps to "steal" (if you believe patents are IP) the idea. Even if "the little guy" doesn't violate any patents, it's possible for the big corps to drag the case out in court until "the little guy" is bankrupt (e.g. just look at how long SCO dragged the case out against another big corp), making it virtually impossible for "the little guy" to enforce the patent but very easy for big corps to freeze out competition.

So basically, even when you have legitimate innovation, software patents serve no good purpose and are harmful. If you have a legitimate innovation then trade secrets are a better alternative that doesn't mess with any of the above problems.

Software patents are a lot like DRM and both are like making a bed with an elastic sheet that's too small for the bed. It looks possible to have "perfect software patents" or "perfect DRM" or "to make the bed", and you may be able to tie down three of the sides, but as soon as you try to tied down the forth side either one of the other three sides come loose or the whole thing falls apart.

Re:Next step

Math is not patentable. Software is nothing but a computer-understandable representation of math. A software patent however does not involve such a computer-understandable representation, it merely covers the idea. The idea behind software is pure math. Therefore a software patent is a patent on math, and should not be granted.

That may seem circular, but math not being patentable is a matter of law. Not to mention a good idea, since math is the fundamental language of the universe, it is the language by which we describe all scientific progress. To patent math is to patent the foundation of science, and will cripple progress. Just like software patents are crippling progress.

Have you ever seen a patent on a math book? Of course not, math isn't patentable. Yet suddenly when you encode that math in a computer language, it is patentable? Hell, with a program like Maple the content of the math book could be "computer readable", so does Maple mean math textbooks can be patented?

copyright

Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents. Patents should be restricted to tangible products. In addition, the software industry itself has insisted and got granted immunity from normal consumer warranties, which is clearly evidence they don't see their own typed up stuff as a "normal product". It's *special*.

They shouldn't have it both ways when no other industry can claim that. If it is patentable, it should come with a minimum implied normal warranty (suitable for use, no glaring and or dangerous defects, etc). No warranty should mean no patent, copyright only.

I hope that is linear enough to answer your question.

The whole opinion

http://www.supremecourtus.gov/opinions/06pdf/05-10 56.pdf [supremecourtus.gov]

KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.

http://www.supremecourtus.gov/opinions/06pdf/04-13 50.pdf [supremecourtus.gov]

Re:KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL.

There's also a paper on Digital Law Online entitled "Unclear and Unconvincing: How a misunderstanding led to the heightened evidentiary requirement in patent litigation" [digital-law-online.info] that does a good job of giving the history of this subject and how it came to be so backward before this was "weakened" ... it's a bit long though.

Check out SCOTT v. HARRIS instead

Are you bored by legal technicalities? Would you rather be watching a 90 mph police car chase that ends in a cataclysmic crash?? Well the SCOTUS has delivered just what you want in their other big decision today: SCOTT v. HARRIS.

Yes, seriously here is the 93MB RealPlayer video: http://www.supremecourtus.gov/opinions/video/scott _v_harris.rmvb [supremecourtus.gov] There are actually two videos of the chase back to back--the second one is better. Choice quote: "Let me have him 78, my car is already tore up!"

(I guess it is ironic that RealVideo format is probably heavily protected by patents.)

If you want the boring legal details of the case they are here: http://www.supremecourtus.gov/opinions/06pdf/05-16 31.pdf [supremecourtus.gov]

And here's a news story about it: http://abcnews.go.com/Politics/wireStory?id=310057 5 [go.com]

The logo should be changed

I think the tagline logo for patents should now be changed. All you can eat is over.

Finally...

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

MS-bashing not quite appropriate here.

Isn't this exactly what we wanted to happen? What kind of repurcussions is this going to have on patent-crazy companies like Microsoft?

This is one of the reasons why it's good to RTFA ... Microsoft was actually the appellant in this case -- the losing party who pushed the case to the USSC, and just won -- they were fighting AT&T, who claimed that U.S. patents basically could be enforced extraterritorially.

The whole issue was whether Microsoft, a U.S. corporation, was responsible for violating AT&T's U.S. patents (which are not, by and large, enforceable elsewhere, for instance in Europe and Asia -- there's no patent equivalent to the Berne Convention on copyright, really) if they only ever violated them in places where AT&T's patents didn't apply (outside the U.S.).

So if Microsoft went and sold AT&T-patent-encumbered software, but only in Europe, AT&T wanted to sue them for patent infringement here in the U.S. This was obviously a Bad Thing, and would have been a major expansion of patentholder's rights.

The WSJ article [wsj.com] about it today was pretty good. (I think that link should work, since it has the "googlenews_wsj" in the URL to bypass their 'Free Preview' bullshit.)

So in this case, Microsoft was actually the good guy.

Microsoft approved, actually. (RTA)

The major tech companies wanted the patent reform--they tend to be victims of spurious patent cases. Microsoft, CISCO, Intel, Etc... (And Time Warner) are more concerned about protecting themselves from being sued by a patent squatter than they are about most of their own patents. Also, this lets them hijack other people's ideas more easily.

The major drug companies didn't want the reform, because patents are their life blood. It will get harder for them to patent obvious changes to medicine, such as combining multiple medications in one pill. (Though in some cases they'd still get away with it, I'd imagine, if they can demonstrate that there's some kind of real innovation going on in the time-delay mechanism or something. Or at least they'll argue that...)

Finally...

... a little more common sense on the patent front?

Vonage

So does this mean that the scourge of the telecom industry may manage to survive?

IANAL

I'm not a lawyer, but wouldn't ex post facto prevent this from being used to overturn patents already in place? Or does that only apply to congressional law?

Re:IANAL

No. Patents can be re-examined at any time with this ruling in mind. This will apply to every flimsy patent issued because of a bad CAFC ruling made years ago. This is the first time SCOTUS has weighed in on this topic since the Graham v. Deere case that established the rules for Obviousness. By calling for more re-examinations (poor patent office might get overrun), these old patents can and should be overturned. The screaming you hear is the big pharma who are going to lose their butts on this. The people who are happy, well believe it or not, they are the software folks (and patent examiners, who will like being able to reject patents without nearly as much effort as before).

Also, people can use this case as precedent to have patents that they are being sued with overturned, showing that they do not have the strength to overcome obviousness over prior art. (Basically, SCOTUS just re-defined obviousness in prior art. Now that prior art has changed, patents can be overturned on prior art they previously were not able to be.)

Windows vs AT&T has some very strange phrasing

The first point is interesting, reading in part...

Until expressed as a com-
puter-readable "copy," e.g., on a CD-ROM, Windows--indeed any
software detached from an activating medium--remains uncom-
binable. It cannot be inserted into a CD-ROM drive or downloaded
from the Internet; it cannot be installed or executed on a computer.
Abstract software code is an idea without physical embodiment, and
as such, it does not match 271(f)'s categorization: "components"
amenable to "combination." Windows abstracted from a tangible copy
no doubt is information--a detailed set of instructions--and thus
might be compared to a blueprint (or anything else containing design
information). A blueprint may contain precise instructions for the
construction and combination of the components of a patented device,
but it is not itself a combinable component.

What exactly is this "Windows in the abstract" separate from "a copy of Windows"? Do they mean that if I copy a software program that incorporates a patented invention, until that copy is converted into a deliverable form it's actually not an implementation of the patented invention. So, for example, software distributed as source code can't violate a patent until it's compiled?

Microsoft may have laid up a whole heap of trouble for themselves here.

Re:Windows vs AT&T has some very strange phras

Interesting... it sounds like they are saying that code itself - i.e. the stuff you get on a printout, on a t-shirt, anything that isn't part of an executable - is not patentable because it is a set of instructions, rather than a device.

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.

Am I missing something here? Or can I start the happy software-patents-are-dead dance?

Did he just say that?

``Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,'' Justice Anthony Kennedy wrote for the court.

I'd like to reword that a bit:

"Granting patent protection to advances that would occur in the ordinary course without real innovation is the progress of retards"

Seriously, though, maybe it's just the nature of the patent-related articles I see on Slashdot, but the real quote seems like the most concise statement on obviousness I've read.

The good news is that this court apparently recognizes the original purpose of patents.

The bad news is that this blindingly obvious quote was selected for inclusion in the article because the patent system has been viewed as a driver-of-revenue instead of a driver-of-innovation for so long.

Some common sense, at last!

IANAL, but this ruling seems so clear and unabiguous, I've got to believe it will put a dramatic damper in patent troll activity. The decision (I've only read the summary) seems to be fairly even-handed. The old teaching-suggestion-motivation test might be a reasonable test to use in some cases, but not at the expense of common sense.

I think the justices 'got it'.

from the ruling:
Inventions usually rely upon building blocks long since uncovered, and claimed discoveries almost necessarily will be combinations of what, in some sense, is already known. Helpful insights, however, need not become rigid and mandatory formulas. If it is so applied, the TSM test is incompatiblewith this Court's precedents. The diversity of inventive pursuits and of modern technology counsels against confining the obviousness analysis by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasizing the importance of published articles and the explicit content of issued patents. In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends. Granting patent protection to advances thatwould occur in the ordinary course without real innovation retardsprogress and may, for patents combining previously known elements,deprive prior inventions of their value or utility.

Anyone know which side IBM took on this case?

I believe they produce the most patents annually.

Positive patent reform in America?

I'm pretty sure that's one of the signs of the apocalypse.
Now, if we can just get this whole copyright thing straightened out a little bit (like maybe reducing the lifetime of a copyright instead of increasing it for a change), and repeal all the legislation on software patents, we may just get somewhere.

Obvious?! No way!

Two words: ONE CLICK.

-SmR

Concise explanation?

TFA doesn't give much details. I tried reading the ruling, but I just don't have enough background knowledge for it to be clear.

Can someone give concise, easy-to-understand answers to these questions:

1. What was the old, "rigid" definition of obvious?

2. What does this decision change about that definition?

If you want serious change..

The US is relying on IP to carry the current standard of living forward. The US does not export or make much of anything any more. IP is a growing percentage of the US exports and "ownership". The US can not maintain its economy on hard physical goods any longer and IP is the only alternative means of money producing items.

If you want serious change, you have to understand the motivation that put many of these laws into place and keeping these laws tough. That is why there is resistence. Take any company with a strong IP portfolio, what do they actually produce and would they have the income they did if IP was not involved? See why there is resistance to change?

Taken

I already patented the combination of common sense and judge mental processes. Thus, the Court owes me!

One of these things is not like the others

Companies that are frequent targets of patent-infringement claims urged the Supreme Court to overturn the Federal Circuit test. The group included Intel, Cisco, Microsoft, Time Warner Inc., Viacom Inc., Micron Technology Inc. and automakers General Motors Corp., Ford Motor Co. and DaimlerChrysler AG.

And what, pray tell, is Time Warner getting patent infringement suits over? Or patenting themselves for that matter?

Damn

Thanks to the Supreme Court, now I'll never be able to get my patent for using written tokens to represent phonetic sounds approved. Hey, wait a second... the Supreme Court just denied me potential profit. I guess I will now file a MAFIAA type lawsuit against them for lost potential income and claim that they've put "thousands of people" out of work by this decision...!

does this now mean I can't...

patent my "ball shaped protrusion for entry-way passage"? I was getting the language patent ready with such phrases like "the device claims an easy hand accessible shape installed at an appropriate height for easy use to open a passage-way". and my favorite "The device claims child safety by being too large to fit a child's hand".

SCOTUS gets it - see this statement:

At the end of the full ruling is this little chestnut:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, 8, cl. 8.

So how does this benefit Vonage

I would think Vonage has a shot at overturning the verdict against them now. Good, and hopefully they'll file anti-trust against Verizon.

Impact on Software Patents

I thought this part had the most impact on software patents:

Third, the court [Federal Court of Appeals] erred in concluding that a patent claim cannot be proved obvious merely by showing that the combination of elements was obvious to try. When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp.

After all, there are only so many ways to code 1 + 1 = 2. Many tech companies like IBM, MS, Sun, etc have huge portfolios of patents mostly for defensive purposes. With this ruling, it would seem that some of their patents are unenforceable.

Just a little annoyance

All it means is that patent applicants need to write a bigger check to the lawyers. Nothing else changed. Move on.

SCOTUS didn't weaken anything - they are fixing it

The Supreme Court didn't weaken patents,and have instead brought some sanity to system that is broken. The Patent Office isn't capable of doing prior art, applicants don't do a good job and there are tons of filings for incremental and OBVIOUS changes and so-called processes being granted. The rules from the Patent Court didn't work for software, since so many advances just get shipped and aren't written about until much later or more likely never.

There are companies that did a lot of innovative work in the 90's that are gone and there is no record of their technology, but they had things we see being patented today as "inventions". These innovations are obvious and were implemented, but no one remembers and there are no articles, and hence no "prior art" or way to show obviousness.

I am a supporter of software patents, but we need to have patents granted for true innovation. Taking an idea from the web and making it work on mobile is engineering and not innovation, but you would never know that from a lot of patent filings. Putting P2P technology in a STB (a computer) and making it "easy to use" isn't invention, but engineering.

Too much stuff is filed that is incremental and obvious so that people can show "protectable IP" to the VCs and therefor raise money. The Patent office can't figure out the stuff and so grants it. A mess that this ruling will hopefully put us on the path to fixing.

It should be obvious

It's a shame that the definition of "obvious" isn't obvious.

Government law is so vague and subjective. It's complete crap.

A Patent Lawyer's Perspective

I am a patent litigator (meaning I mostly kill patents; I don't create them), and this of course is big news in my practice today, and will be very helpful in several on-going cases.

Here's my take: the case allows lawyers to tell a story about the prior art that makes sense. Previously, the Federal Circuit had shut you down if you couldn't point out explicit prior art for every little detail of the patent that you wanted to invalidate. That's exactly what they did in the case under review. The defendant pointed out that all of the basic problems had been solved in other patents, but the Federal Circuit responded that they hadn't been solved with the intent of solving the particular problem the patent said it was trying to solve. Well, so what? We should be able to assume (and argue) that ordinary engineers have a little common sense and creativity in determining how to use previous inventions. We shouldn't have to show the courts that there was an exact road-map for an idiot to follow and arrive at the precise "invention" at issue. That's the big help in this case.

So from my point of view, here are the two big advances from KSR today:

• "A person of ordinary skill is also a person of ordinary creativity, not an automaton." (Page 17)
  This should be obvious, but it will help that the Supreme Court said it. It will be quoted a lot because it shows that we can assume that the ordinary engineer can make simple inferences and doesn't need his hand held.
• "When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." (Also page 17.)
  This is the Supreme Court's long-winded way of boosting the "obvious to try" argument. The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.) But I read this opinion as saying that "obvious to try" goes a long way towards showing that it was "obvious to do". In other words, if it was obvious to try and the trying used predictable methods and yielded a predictable result, then the whole thing was likely obvious. So this will help as well.

Finally, it is going to be interesting to see how the PTO itself deals with this opinion. If an examiner comes back to you and says, "no I think this is obvious," it's very difficult to "prove" otherwise, especially early in a product's life cycle when you don't have market data to show how successful it might be, etc. At least under the previous test, the examiner would have to point out all the explicit references in the prior art. Now they apparently just have to point out the basic elements, and then say, "in their opinion," a person of ordinary skill and creativity would have been able use these elements to make the invention. How do you argue with that? "No, I don't think ordinary people are that creative"?

So, you fix one problem and possibly create another. The opinion shifts the debate to help prove obviousness, but it doesn't solve the underlying problem of what obviousness means. So it goes.

CAFC smackdowned again

I just read the syllabus (technically not legally binding; the actual opinion is, but there's almost no effective difference) of the opinion, and the SCOTUS basically shot down decades of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals case law, bringing back the previously SCOTUS decided Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 17-18 as the solid basis for determining obviousness. Assuming the CAFC doesn't try to weasel out of this like they originally did around Graham [cornell.edu] ( or around Benson [cornell.edu] for software) this will have a potentially huge impact in the scope of claims issued by the PTO, or if a patent even issues in the first place. Much will depend on how PTO management interprets the decision and what guidelines are given to examiners, at least in short run until some appeals hit the CAFC.

Once again the SCOTUS has reigned in the CAFC which, as the most frequent appellate decider of patent law, gets to decide what the patent law is for years at a time, with only the relatively infrequent SCOTUS decisions permitting correction. Today is one of those infrequent occurances.

BROADBAND INVENTION

I can say that my grandfather invented "Broadband" by trasmitting many music channels over a single phone line. Of course he was a genious, but i have no legacy from that invention, you might ask, why do i have to eat "rice" when i am from the best family of inventors ever.

Supreme Court Weakens Patents

Good, now only they will throwout softwares!!!

Falcon

This solves a big catch 22

The big catch 22 of the former standard is that many patents cover things that are so blindingly obvious that most people would never even think to make a note of the idea, much less enshrine it in a patent. The only entities that would do otherwise are big corporations with lawyers on staff that cost the same amount sitting around as they do filing frivolous patents.

The first patents against the wall will be the so-called business method patents that can be sumarized as do the same thing merchants have done since we invented writing, only use a computer.

I wonder how the MP3 patents will fare given that they're really just a special (and somewhat simplified) case of the processing done for a cochlear implant, that is, do an FFT, then encode only the most important bands. The case of the cochlear implant case is much more difficult due to the hard limit on the number of bands that can be encoded (that is, how many electrodes can be effectively implanted).

dear everyone, meet my standard for obviousness

Hi, I have a standard for obviousness that I think would work better. Here is the deal--you come up with something that could, feasibly, have been done at any time in the last 20 years, and you get it exclusively for the next 20 years. It's non-obviousness is derived from the fact that no one has done it. You would have to come up with a definition of "feasible", but I think you could do it.

The point is, I don't think the intent of patents was to spur a land rush into previously unexplored territory and reward the people with the fastest wagons. The idea is that if you find something that might not otherwise have been done, we'll let you have an exclusive right to it for a while if you tell us how it's done. How do you know it might not otherwise have been done? Well, we pick an arbitrary period of time and say "if it has been feasible for this long, and hasn't been done by now, it doesn't seem obvious, so we'll call it non-obvious".

I know the people that got a patent on auctioning municipal bonds over the internet. Auctioning things over the internet was already done. Auctioning by fax machine was already done. Does it really make sense for them to have an exclusive right to that? I like them, and they are the "small inventor getting rewarded for their innovation" types. But it could just as easily have been done by one of the big guys and they would have been locked out. I just don't think that is what patents are for. Fifty different implementations would be running by now if they hadn't gotten there first.

Think about it this way--if you used this rule, the people that want to patent their inventions would really have to be thinking hard. What can I do that no one has done even though it's been feasible to do it for 20 years? That is waaaaay harder than just being the first guy to the PTO with one-click. And that's the real point--give people an incentive to think really hard.

Minor change that would demonstrate obviousness

The First to file and first to invent rules [wikipedia.org] always seemed strange to me. If two people file a patent for a similar idea at about the same time, then shouldn't that be a demonstration that the idea was obvious... or at least not unique?

If I had my way, if anyone submitted a similar patent to one that was still being examined and not yet awarded (or made public), then both should be invalidated as the idea should be deemed obvious because two practitioners of the art clearly came up with the same idea independently. This would have prented both the light-bulf and phone patents to have been rejected, which, in historical retrospect seem to have been indepentently invented by several different people/groups at about the same time.

Summary wrong again

The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine [sic] whether a patent is obvious.

No, the Court upheld the decades old test from Graham v. John Deere [wikipedia.org]. What they did was tell the Federal Circuit "you're doing it wrong." Big difference.

The Federal Circuit had been rigidly applying the "teaching, suggestion, motivation" test, which says, clearly enough, that an invention is ONLY obvious if there is some teaching, suggestion, or motivation in the literature to combine various known inventions. (Opinion p. 2) The Supreme Court said that even without an explicit or implied motivation, inventors are 'routinely creative' (my words) when it comes to taking known approaches and applying them to new problems. The court said, on page 17:

The idea that a designer hoping to make [a device] would ignore [a particular approach] because [that approach] was designed to solve [a different] problem makes little sense. A person of ordinary skill is also a person of ordinary creativity, not an automaton.

They also said on page 17 that an invention might be obvious if it were only 'obvious to try', even though there was no way to know if it would work ahead of time, because people are routinely forced to try out different combinations of approaches in response to market pressures or design needs. The Court considers these actions to be part of the due course of business, and not particularly non-obvious. As a result, the court said, on page 15:

Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

I finish with a quote that's been quoted elsewhere but is worth repeating:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, section 8, cl. 8.

Re:R.I.P. incremental evolution

Um, I think you misunderstand the patent system. Patents don't trump each other. If you come up with something that is based on one or more previous patents, while you could previously patent that new combination, you were not free from the patents on what you were improving upon.

So all that happens is that those combinations are no longer patentable. But that's not to stop inovation. Most consumer product makers like Nintendo and Apple have some amount of Patents that they license in order to make their products. Both of those companies as the seller of products constantly refine and improve upon them. This just means that if there is an obvious way for nintendo to improve the DS and come out with the next form factor, they won't have tlo pay someone cause they patented that combination.

It might hurt some companies that ride the bleeding edge without making any attempt to compete on quality or price. But the real peopel this will hurt are the patent equivelent of domain name squatters. People who have no intention of ever releasing a product, and will never produce a prototype that's even remotely market ready, but will just wiat for some one to try the combination and then sue them to get bought out or get a fat settlement.

Re:AHA!!! Finger point...

But since they are bored and unscrupulous, that will give them plenty of time to beat the streets looking for a patsy to set up in front of a judge and jury. They'll supply the client, the legal system will supply the paycheck.

Hey, why not? Sure beats working for a living.