Supreme Court Weakens Patents 331
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 (Score:5, Funny)
Next step (Score:5, Insightful)
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Re:Next step (Score:5, Interesting)
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 (Score:4, Interesting)
That doesn't negate any
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 (Score:4, Insightful)
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...So what you're saying is that anything produced digitally is not novel?
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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.
No. That would still be a very large copyright violation, just as it is now. In fact, AFAIK, wholesale copyright infringement does not cause you to infringe the patents because you are not creating an implementation of the patent.
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So it's either a violation of contract (and possibly copyright), if the person RE'd it after purchase, or it's definetly copyright if they pirated it to RE it.
I don't remember *ever* not seeing a "don't reverse engineer" this clause on a EULA for software.
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A patent is a right to an invention. So you essentially said that the reason we have patents is because when you invent something patentable, you have a patent.
The problem is that while you've claimed that it's true because you've claimed it's true, it's actually false; that's not the reason why we have patents.
What I'm getting here is a sense that all people exist for the publi
Re:Next step (Score:4, Interesting)
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.
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There's no "moral right" to IP. (Score:3, Insightful)
If that's your opinion, and your belief, well, that's fine -- more power to you. But it's certainly not a widely-held one, and I think you'll find any sort of evidence for or substantiation of it, in law or philosophy, surprisingly sparse.
I can't think of any basis for a natural right to "intellectual pr
Re:Next step (Score:5, Insightful)
As soon as you allow them to be patented you make thought itself against the law.
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If I've got an RS-232 cable plugged into a computer and its nothing more than few lengths of copper wire, then I run a piece of software on the computer and now there's electrical current on pins 2, 8, and 11 of the cable, I'd say that's caused a change in the physical world. It's not just a "mental process," any more than a
Re:Next step (Score:5, Insightful)
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 (Score:5, Insightful)
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 (Score:5, Insightful)
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.
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An algorithm turns a general purpose machine into one for a particular purpose. This is no different from patenting the Spinning Jenny. So, in principle, I agree with software patents. However, I think the *implementation* of patents should be tightened, particularly wrt full-disclosure. If you patent an algorithm or a method, then you must fully disclose the code, or at least a reference implementation. Something which is patented cannot be a trade secret. And I agre
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First, while I'm not entirely sure your first paragraph's point, I can guess that you are upset that the entire idea of the FOO algorithm can be protected. This isn't an entirely coherent with respect to any of the intellectual property regimes anywhere. First, to the extent that a patent may apply, a patent would cover it only to the extent that it is a "process, machine, manufacture, or composition." The problem with res
The problem is how we handle them. (Score:5, Interesting)
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. (Score:5, Insightful)
> be patented,
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_0199-6106
(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 (Score:4, Insightful)
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?
Proof? (Score:3, Insightful)
Can you show us a plausible proof for that assertion?
By your logic, running a warehouse is nothing more than a human-understandable representation of the motion of molecules.
copyright (Score:5, Insightful)
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.
Nah (Score:3, Interesting)
The test for what can be protected under copyright is not "typed up stuff." Recipes, for example, cannot be copyrighted. Recipe books can be copyrighted -- which might include copious explanatory text, photos, and all sorts of other things -- but a list of ingredients and steps of how to put an individual meal
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I think one problem with software patents is that many companies have patented technology, that while it may not be a 100% obvious technology, is something that another entity could come up with completely on their own, without even knowing that somebody else has patented the idea. I have no problem with a patent preventing someone from steeling a technology, but I find it very disturbing when companies apply for patents
What would be the point? (Score:2)
The algorithm argument (Score:2, Informative)
To get a sense of the distinction, it may be helpful to think about the Supreme Court's *other* big patent ruling today, i.e., Microsoft v. Alcatel-Lucent. In this case, both companies admitted that Windows infringes on Lucent's speech recognition patents. Normally, these patents would not a
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Some algorithms (like RSA) are really smart and clever and do deserve patent protection (the length of protection can and should be discussed). But bloody silly algorithms like 'one click' and all the avalanche of pathetic patents on well-used and obvious programming techniques should rightly now be shown the door.
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Because on their own they are simply not useful (patent law specifies that an invention be useful). Software on its own cannot do anything, it is just an algorithm or bunch of text. IT doesn't do anything. It is only useful when it is actually added to something else (like hardware).
So you can patent software if it constitutes a required and necessary part of an overall invention, and that invention passes the usefullnes
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I still don't understand what makes algorithms and software OBVIOUSLY not patentable. Also, stop misusing the word "mathematical". I am not a proponent of software patents; I just don't see what makes software patents so different from other patents, and I haven't seen a single logical argument against software patents that doesn't involve circular reasoning.
If you give 100 programmers the same task, two of them are bound to create similar or The SAME algorithm to solve the problem. This is what makes software patents so strange. It would be like someone getting a patent on the doubly-linked list. Adding that second link is an obvious extension of a single-linked list.
And, there are only so many ways to do something correctly. The One-Click ordering sequence is a natural progression from the shopping cart metaphor. "Why make someone follow ALL of the p
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So really, the problem is not necessarily software patents, but the fact that there doesn't seem to be an effective standard for obviousness for software patents. Which I guess is what the Supreme Court hopes to rectify?
The whole opinion (Score:4, Informative)
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KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL. (Score:5, Informative)
Re:KSR INTERNATIONAL CO. v. TELEFLEX INC. ET AL. (Score:5, Interesting)
Check out SCOTT v. HARRIS instead (Score:4, Interesting)
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]
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The logo should be changed (Score:4, Interesting)
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Personally, I feel the icon is still valid. Mostly because we still allow patents on things that don't actually cost anything to manufacture, such as software and "business methods".
Okay firstly I will point out I don't agree with software patents, they are destructive to innovation, however, how can you possibly say software doesn't cost anything to manufacture?
There is lots of costs involved in software development, nothing in this world is free, even from the view of some geek sat at home hacking away at his favorite opensource application, there is time involved, there is development environments, there is debuggers, there is electricity to run the system. So that is a minor exam
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Not design; manufacture. Designing a chair costs money, making replicas of that chair at a factory in order to sell them also costs money. Designing software costs money, but once that's done, there is no additional cost to manufacture, unless you count the box, CD and jewelcase, which are no longer needed. Selling one copy or one billion copies costs the same, and someone
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Finally... (Score:2, Interesting)
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in favor
of the ruling. They see themselves, apparently, as victims of excess patent litigation.
MS-bashing not quite appropriate here. (Score:5, Informative)
This is one of the reasons why it's good to RTFA
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.
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Actually, TFA isn't about the Microsoft/AT&T patent case, it's about another patent case, KSR International v. Teleflex, in which Microsoft came down on the side of KSR, who were challenging a Teleflex patent on adjustable gas p
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The first one was Teleflex Inc. vs KSR International Inc. MS was an interested bystander in this ( as were Intel, Cisco, Time Warner, Viacom Inc., Micron Technology Inc., General Motors Corp., Ford Motor Co. and DaimlerChrysler AG. )
The second case was Microsoft vs AT&T on the subject of patents on exports.
It's not quite clear to me which o
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Microsoft approved, actually. (RTA) (Score:4, Informative)
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...)
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-nB
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Speak for yourself. I find all software patents offensive. :-D
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Vonage (Score:2, Insightful)
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Here are the patents Verizon has, just a cursory reading makes them seem REALLY obvious imho(but then again I am a Vonage customer):
Patent Uno [uspto.gov] Patent Dos [uspto.gov] Patent Tres [uspto.gov]
IANAL (Score:2, Interesting)
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No, the law hasn't changed, only the interpretation of it. Plenty of now-obvious patents could now be challenged again.
In addition, even if it was a change in the law, there's nothing that says that can't happen. See, for example, the extension of copyright terms to works already in existence.
Re:IANAL (Score:5, Insightful)
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.)
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No. In a highly technical sense, ex post facto laws as used in the U.S. constitution refer only to laws that affect criminal punishment, either by increasing the punishment for a crime or defining a new crime. There is no per se constitutional prohibition against ex post civil laws, although some retroactive laws might violate due process.
In a more ge
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At least, next time someone starts to sue for infringement, it is easier to get the patent revoked for obviousness.
And the USPTO will sweat about getting the new stand into their guidelines and procedures.
Still, the Supreme Court has not taken any decision about software patents; only on obviousness. In the end it was them who forced the U
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Oh really? Ever heard of Roe vs. Wade? Brown vs. Board of Education? Plus a whole string of cases that forces racial quotas in schools via busing, under court order.
Not making a statement as to the wisdom, but these were clearly cases where the court took a stand and created law.
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Windows vs AT&T has some very strange phrasing (Score:5, Interesting)
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.
Microsoft may have laid up a whole heap of trouble for themselves here.
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That was my reading of it, but IANAL.
-Rick
Re:Windows vs AT&T has some very strange phras (Score:4, Interesting)
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?
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Changes very little. (Score:2)
Yes, algorthims are not patentable just devices. (Score:2)
So, for example, software distributed as source code can't violate a patent until it's compiled?
Actually the Supreme Court took it one step farther - patents are not enforceable on software until it is combined with (installed on) a device that can run the software.
You cannot patent algorithms, just devices - this has been true since the beginning. The Supreme Court has never ruled that software is patentable, just that a device implemented using software is just as patentable as one implemented using hardware. It has long been believed that source code would not be considered a device, but just a de
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This is different than the EU, which allows for "Computer Impelemented Invention" [epo.org] or CII. This is an invention as executed by a device. Though in reality, CII patents have been granted when there was no device at the time of filing, so that's even a misnomer.
Regardless, the ruli
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The quoted language says that my 'idea' of Windows can't be a component of a patented item. A blueprint may tell how to build something, but only the piece once built may be a compon
Did he just say that? (Score:3)
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! (Score:2, Informative)
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 combinatio
Concise explanation? (Score:2)
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?
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I'll try to address the first question, and then return later to address the second question, unless someone finishes the opinion before me.
KSR International Co. v. Teleflex Inc., isn't so much about "obviousness" per se, but about the "teaching-suggestion-motivation" prong of the obviousness inquiry. According to the Manual of Patent Examination and Procedure, an Examiner can establish a prima facie case of "obviouness" by showing that:
"First, there must be some suggestion or motivation, either
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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. If this leads to the anticipated success, it is likely the product not of innovation but
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Essentially when rejecting a patent application an examiner could combine two different peices of prior art in the form of patents, PGPubs, Non-patent literature, etc. to come up with a rejection. In order to properly combine these pieces of art properly the examiner had to show exactly why it would be obvious (
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But, of course, this could lead to a slightly different definition of what counts a
If you want serious change.. (Score:2, Interesting)
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 compa
One of these things is not like the others (Score:3, Interesting)
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Damn (Score:2)
SCOTUS gets it - see this statement: (Score:5, Insightful)
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 (Score:2)
Impact on Software Patents (Score:3, Insightful)
I thought this part had the most impact on software patents:
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.
SCOTUS didn't weaken anything - they are fixing it (Score:3)
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.
A Patent Lawyer's Perspective (Score:5, Insightful)
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:
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.
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.
Re: (Score:3, Interesting)
Disclaimer: no I am not seeking free legal advice on a Post-It-Note style invention. I don't work in a field even remotely related to paper products. My company has a corporate legal department and also us
CAFC smackdowned again (Score:3, Interesting)
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.
Re: (Score:3, Insightful)
Which, yes, is exactly the kind of common sense that seems to have been lacking and that I'm very glad the Court supported. That's the whole problem with patenting "obvious" things -- other people, perhaps many other people, would come up with the idea anyway in the course of solving whatever problem they are working on. Yet if it is p