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USPTO Decides To Lower Obviousness Standards 129

Posted by samzenpus from the patent-limbo-stick dept.
ciaran_o_riordan writes "Anyone who feels that patent quality is just far too high nowadays will be glad to hear that the USPTO has decided to ditch four of their seven tests for obviousness. Whereas the 2007 guidelines said that an idea is considered obvious if it consisted of '[predictable] variations [...] based on design incentives or other market forces' or if there was 'Use of a known technique [prior art] to improve similar devices (methods, or products) in the same way,' the new guidelines do away with those tests. The classic 'teaching-suggestion-motivation' test is still there, with two others. For software developers, silly patents are not the main problem, but they certainly aggravate the matter. As described in one patent lawyer's summary, this change will 'give applicants greater opportunities to obtain allowance of claims.'"
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USPTO Decides To Lower Obviousness Standards More

USPTO Decides To Lower Obviousness Standards

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  • I patent the "First Post" (Score:3, Funny)

    by DevConcepts ( 1194347 ) on Sunday November 07, 2010 @09:51AM (#34154184)

    Pay me!

    • Contrary to what TFA seems to think, I'm pretty sure "First Post" is obvious under the 2010 KSR Guidelines.

      Sorry bro, your patent just got rejected.

  • first post (Score:1, Troll)

    by slick7 ( 1703596 )
    first post...HA...how obvious is that?

  • trying to undo KSR? (Score:4, Insightful)

    by l2718 ( 514756 ) on Sunday November 07, 2010 @09:53AM (#34154192)
    The 2007 guidelines were needed after KSR v. Teleflex [wikipedia.org] . It seems the USPTO is now trying to push back against that ruling.

    • Re:trying to undo KSR? (Score:5, Insightful)

      by Antique Geekmeister ( 740220 ) on Sunday November 07, 2010 @10:04AM (#34154316)

      They're a bureaucracy. Their funding, staff, and political power are based on their work actually mattering to someone. So are the bribes, perks, "business conferences", seminars with "concerned business leaders", political contributions for candidates friendly to their office, etc. So are their after government service careers as patent attorneys or consultants, and the jobs of their peers in industry.

      This kind of thing is true of _all_ bureaucracies. It often takes a force from outside, such as a visionary leader or a defining test case, to serously alter such standards. We had some hopes that the "Bilski" case would improve the guidelines, but it merely created new layers of creative interpretation for patent submissions to provide.

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      These guidelines are just that, guidelines. They are not binding on the Examiners, the court rulings are. They are just fleshing out certain tests because they require very specific factual patterns and you had Examiners applying them without understanding them. The other tests outlined in the KSR decision are still available for use, and will be available until the Supreme Court says they are not.

      As an Examiner I have to say this really won't change how people examine, unless they were applying obviousn

    • Re:trying to undo KSR? (Score:5, Informative)

      by Bigjeff5 ( 1143585 ) on Sunday November 07, 2010 @11:34AM (#34154878)

      TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

      First off, they are administrative rules, and have no force of law and are not enforceable in any way.

      Second, they mearly state that the KSR SCOTUS ruling does not replace the old methods of determining obviousness, it simply gives the PTO new lines of reasoning to use when rejecting a patent.

      Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

      I don't know where swpat.org got the idea that this eliminated any of the 2007 rationals, but it isn't in there at all. If anything this makes it easier for patent officers to reject a patent for obvious, because it makes it clear that the new standards (2007 guidelines) don't replace the old standards, they apply in addition to the old obviousness standards (pre-2007 guidelines).

      Really, if they bothered to read it the wouldn't be making asses of themselves.

      • TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

        First off, they are administrative rules, and have no force of law and are not enforceable in any way.

        Second, they mearly state that the KSR SCOTUS ruling does not replace the old methods of determining obviousness, it simply gives the PTO new lines of reasoning to use when rejecting a patent.

        Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

        I don't know where swpat.org got the idea that this eliminated any of the 2007 rationals, but it isn't in there at all. If anything this makes it easier for patent officers to reject a patent for obvious, because it makes it clear that the new standards (2007 guidelines) don't replace the old standards, they apply in addition to the old obviousness standards (pre-2007 guidelines).

        Really, if they bothered to read it the wouldn't be making asses of themselves.

        Please mod parent up. (I don't have mod points or I'd do it myself.)

      • Re: (Score:3, Insightful)

        by cgenman ( 325138 )

        Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

        Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher sta

        • Re: (Score:3, Insightful)

          by Dragonslicer ( 991472 )

          Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher standard?

          How would you enumerate what patents should be allowed? You can't list every possible invention. If you could create a list of patentable inventions, they probably wouldn't be patentable, since you clearly already have someone (or more likely a large number of people on a committee) that has come up with the idea. The list of reasons for rejection is relatively short, so it's much easier to consider an invention patentable unless there's a specific reason to reject it.

        • Re: (Score:3, Informative)

          by Foobar of Borg ( 690622 )

          Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

          Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher standard?

          Both are based on law. It's just that, the way the law is written, the Patent Office has the initial burden to make a case that the claims in the patent application should not be allowed.

        • Re: (Score:2)

          by Kjella ( 173770 )

          It'd be a pretty crazy world if the patent office could grant every patent Microsoft filed and deny everything Apple filed on a whim. It seems perfectly reasonable that all claims are valid unless they specifically fail to be in a patentable domain or any of the requirements to be a patentable invention, I don't see many other ways to get equality before the law. Not that I'm very fond of patent law in general and US law in particular...

      • TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

        Gee, a slashdot article about patents that is clueless about how the patent system actually works! Whoda thunk?

      • So, why does ipeg.eu say:

        In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.

        and

        This is in line with the general trend of the PTO under Director Kappos to [...] and give applicants greater opportunities to obtain allowance of claims.

        ?

      • Commenter says:

        First off, they are administrative rules, and have no force of law and are not enforceable in any way.

        Ok, but do you know that they don't have to have force of law in order to change how examiners evaluate patents? This is confirmed by Dennis Crouch of Patently-O:

        The 18-page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.

        http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html [patentlyo.com]

        Hope that helps.

  • wtf? (Score:3, Interesting)

    by shentino ( 1139071 ) <shentino@gmail.com> on Sunday November 07, 2010 @10:10AM (#34154340)

    So let me get this straight...

    USPTO is already rubber stamping stupid patents a mile a minute, and now they're making it easier for even MORE crap to come out?

    Or are they just making it *harder* for that crap to be shot down in court?

    • They really need to hire some of those Robo-signers that the banks use. They could clear that back log in no time and push a whole tsunami of economy wrecking patents out the door.

      Really nothing helpful is ever going to come out of the patent office. The only hope is that they tick the courts off so much they do some thing rash like making a reasonable decision or some thing.

    • What they really need is to hire a crapload of new workers to examine the patents being submitted. One of the problems they're having is that since pretty much every patent is granted, there's a lot of them being submitted which wouldn't have been in the past. Meaning that by rubber stamping patents they're probably making the workload worse.

      Consequently they need to hire a huge number of people to handle the work load and probably raise the standards substantially. Perhaps fine companies that willfully

      • Which is exactly why *lowering* the standards looks like someone got paid off.

        It's such a batshit insane move that not even the feds could be incompetent enough to pull it off by accident.

        And considering all the fuckups the feds have already managed to pull, that's really saying something.

        • It's such a batshit insane move that not even the feds could be incompetent enough to pull it off by accident.

          And considering all the fuckups the feds have already managed to pull, that's really saying something.

          Two words.

          Cloward & Piven.

          Chaos, an overwhelmed government taking on ever more burdens, and an over-taxed, over-regulated, and under-employed citizenry losing faith in that government and becoming desperate enough to accept a "new world order" to "fix things" are the goals.

          Welcome to your "hope and change" and "fundamental transformation".

          Strat

      • Re: (Score:2)

        by arivanov ( 12034 )

        Classic case of a positive feedback loop in action.

    • Re:wtf? (Score:5, Informative)

      by The Empiricist ( 854346 ) * on Sunday November 07, 2010 @10:31AM (#34154454)

      USPTO is already rubber stamping stupid patents a mile a minute, and now they're making it easier for even MORE crap to come out?

      It's more likely that they are trying to improve the quality of examiner rejections. Consider a claim for a widget comprising component A and B. The Examiner finds component A in reference Andy, and component B in reference Bob. The examiner then says without providing any rationale that it would have been obvious to combine Andy and Bob to make the claimed widget. A weak rejection like that encourages the applicant to appeal instead of amending the claim. This is bad news, especially if the claimed widget is obvious over Andy and Bob, but the Board of Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit, not having any rationale to review, didn't recognize that the claimed widget was obvious.

      Or are they just making it *harder* for that crap to be shot down in court?

      Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court. But ultimately, the Patent Office has no say in how the courts determine whether a claimed invention is obvious or not. These guidelines aren't even enforceable through appeal with the Board of Patent Appeals and Interferences:

      This 2010 KSR Guidelines Update does not constitute substantive rule making and hence does not have the force and effect of law. It has been developed as a matter of internal Office management and is not intended to create any right or benefit, substantive or procedural, enforceable by any party against the Office. Rejections will continue to be based upon the substantive law, and it is these rejections that are appealable. Consequently, any failure by Office personnel to follow this 2010 KSR Guidelines Update is neither appealable nor petitionable.

      A patent practitioner could use these new guidelines to try to persuade an examiner (or that examiner's supervisor) that a rejection wasn't good. But, if the practitioner is unconvincing, then there may not be much that the practitioner can do based solely on these guidelines.

      • Re:wtf? (Score:5, Insightful)

        by Pinky's Brain ( 1158667 ) on Sunday November 07, 2010 @10:50AM (#34154582)

        There can be no rationale for an obviousness test ... ultimately something is obvious just because.

        Of course lawyers will never accept this ... having to take the word from experts without being able to weasel their way into the decision? No fucking way.

        • And how do you propose a patent attorney advises his client? That his application will be denied "just because?"

          • Re:wtf? (Score:4, Insightful)

            by RocketRabbit ( 830691 ) on Sunday November 07, 2010 @12:09PM (#34155128)

            The point is that the fucking lawyer's job is to tie up the court system and take a third of the cash.

            Lawyers can not accept the idea of other non-Lawyer people having any say-so, as it sort of ruins their scam.

            • First, patent litigation frequently involves retaining experts. Both the plaintiff and the defendant will retain and expert (and sometimes even the Court retains one). That's one of the reasons patent litigation gets very expensive for defendants (which feeds in to the reason we have patent trolls (along with the pro-troll Eastern District of Texas, and the complete failure by the courts (especially the E.D.Tx.) to actually use Fed.R.Civ.Pro. Rule 11 sanctions as a deterrent). It may surprise you, but t

              • No, I will blame the politicians, most of whom are lawyers, for crafting a system that benefits their clan.

                Almost every one of the problems in America can be blamed on our professional political class, more than 80% of whom are lawyers. It really is that cut and dried.

                • I'm not sure where you're getting the 80% figure from. From the numbers I've seen, about half of our senators are former lawyers, and around a third of the house of representatives are former lawyers. As a side note, a little under half of the signatories to the Declaration of Independence were lawyers. You can find that here [abanet.org]

                  Also, there is no lawyer 'clan'. There are multiple different types of lawyers, all of which have varying (and frequently diametrically opposed) professional interests. For inst

              • Re: (Score:2)

                by bit01 ( 644603 )

                the attorneys just attempt to represent the businessmen in the best fashion possible

                Sorry, but being paid doesn't absolve lawyers of any ethical responsibility.

                Lawyers love to claim this but it's simply not true. Just because a client sets a direction doesn't mean the attorneys aren't actually doing it.

                And without the client wanting to bring the case in the first place, there wouldn't even be any litigation.

                And without the attorney wanting to bring the case in the first place, there wouldn't even be any

          • I propose all patents get rubber stamped.

            If it comes to litigation let courts decide the matter with independent (domain) experts. These are the only people who can truly judge obviousness any way.

        • There can be no rationale for an obviousness test ... ultimately something is obvious just because.

          That's the stupidest thing I have heard in at least a month.

          If you can't answer the question "why is it obvious" then you have no business declaring something obvious. The fact that nobody else thought of it before is evidence that it is not obvious, so you'd better have a good reason for saying it is obvious.

          That's basically what this ruling does. It doesn't eliminate anything, TFA is wrong. The whole thing boils down to "Make sure you have your facts straight and that your rational to reject a patent i

          • Re: (Score:1)

            by NoSig ( 1919688 )
            I'd say that it is and certainly should be the person applying for a patent who has the burden to argue convincingly that the patent should be granted. New ideas are certainly not necessarily non-obvious - to have a new idea it suffices merely to consider a problem that hasn't been considered before. Even the most straight forward solution is then going to be new, but it might well be obvious. The originality there is solely in considering a new problem, but problems aren't patentable, or at least they shou
          • The fact that nobody else thought of it before is evidence that it is not obvious, so you'd better have a good reason for saying it is obvious.The fact that its so obvious that no one else tried to patent it does not mean that no one thought of trying to patent it before the first application. The fact that USPTO officials cannot think of things for themselves is not proof of anything either.

            If its well known that keeping butter cold preserves it, and well known that putting things in fridges keeps them c

            • the problem is that butter would also be a new invention, and so putting the butter in the fridge would also be patented before butter even hits the shelves, and your saying because it wasn't done before then its not obvious?

        • And how does a court know what is obvious? Which expert should they 'trust'? I can find an expert to say just about anything in a judgment case.

          Oh, so maybe you want to create a panel of experts... appointed by whom? They can also be bought by companies, political affiliations...
          They could be like the supreme court... which has its own set of problems.

          Or maybe you want a group of self-selected scientists unaccountable to the public and we should just obey their 'expert' opinion. Surely nothing could go

          • How are Judges (experts of law, that decide matters of law) chosen again?

            • Ever heard of a jury? Judges don't make all the decisions on the law... for very good reason.

              Even the top of the top judges on the supreme court can't agree and there's lots of issues.

              • Ever heard of a jury? Judges don't make all the decisions on the law... for very good reason.

                You are a little bit off in suggesting that jury makes some of the decisions on the law. Juries decide facts, not law. Often, the jury verdict forms will ask the jury to provide a conclusion based on applying the facts (which they jury implicitly finds) to the law (which the judge tells the jury.

                The fact/law distinction is why jury instructions are often a basis for vacating a trial. If a judge gives an inaccurate description of what the obvious standard is, and the jury says that "X was obvious over the

        • Re: (Score:1)

          by Petrini ( 49261 )

          I'm not sure if you're trolling or not, but what the hey.

          Many inventions, even some of the best, are only obvious after you've seen them. Hindsight is 20/20. How many times have you seen a new product and said to yourself or someone else: why didn't I think of that?!

          Does that mean that none of these are inventions that are deserving of patent protection? The consensus among people who think about these things is: no, obvious in hindsight isn't a good reason to reject a patent. That's the rationale. So,

      • Re: (Score:1, Insightful)

        by Anonymous Coward

        Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court.

        I don't think your conclusion follows. If the examiner can reject a claim with a relatively vague reasoning, then the applicant would be forced to justify their claims better. On the other hand if the examiner's powers are limited and he/she has to find a stronger justification for rejecting a claim, then it is easier for the applicant to get claim through.

        Basically, it is a question of the balance of power between the applicant and the examiner. The examiner is already at a relatively weak position sinc

        • If the examiner can reject a claim with a relatively vague reasoning, then the applicant would be forced to justify their claims better.

          Actually if the rejections are too vague the patent applicant simply appeals the decision and wins when the court says "why the heck is this ruled obvious?"

          When the rejections are strong and grounded in facts with SCOTUS derived rationals behind them, it's really really hard to win on appeal, so the patent applicant amends their claims instead.

    • Call me crazy but I smell someone getting paid off at the USPTO to fill someone's IP war chest.

      • Call me but I smell a website that can't read the fucking 2010 Guidelines.

        It doesn't say anything at all about removing any of the rationals. All it says is to be sure to have a solid rational for rejecting a patent on obviousness, and to be sure you have facts to back up that rational. This makes an appeal virtually impossible, and is a very good thing.

  • Obvious is different to different people (Score:3, Interesting)

    by LordNacho ( 1909280 ) on Sunday November 07, 2010 @10:15AM (#34154380)

    I can see why someone might think patents are a good idea. You spent effort inventing something, so you don't want someone taking your idea and your customers (by offering it cheaply due to smaller R&D costs). In return for a temporary monopoly, you reveal how your invention works.

    The thing is, these days, with so many high-tech specialized niches, anyone who wants to make use of your patented idea would need to be an expert anyway. I'm pretty sure I wouldn't be able to understand any of the patents behind modern CPUs for instance, unless I spent an awful lot of time reacquainting myself with electronics. In other words, you need to invest in a form of R&D to be able to gain anything from reading a patent. Now, experts in various fields tend to know what is going on in those fields. They know what the hot research topics are, and what kinds of designs people are thinking about. In that sense, everything in that field is obvious to them. It's just a matter of time before someone actually gets xyz algorithm/design to work. Should we really be rewarding the firms with the fastest lawyers?

    • Re: (Score:1)

      by fatp ( 1171151 )
      <quote><p>Should we really be rewarding the firms with the fastest lawyers?</p></quote>

      Yes.
      The law is made by the lawyers, for the lawyers.

    • Should we really be rewarding the firms with the fastest lawyers?

      When you think about who runs the country, you'll realize the answer to that question is irrelevant.

    • The same mistake... (Score:5, Insightful)

      by Anonymous Coward on Sunday November 07, 2010 @10:33AM (#34154470)

      ...over and over again. Remember: patents also block independent development.

      So often your competition has arrived to the idea independently and hasn't had "smaller R&D costs" anyway.

      This happens especially often in the software industry, where the ideas are a dime a dozen (I mean: Amazon one-click? Hello?). So it just becomes an instrument to block the smaller competitors out of the market. Or an instrument for otherwise useless lawyer firms to prey on innovation, costing us all more than it should.

      Parasites, I'd say.

      • There is also a patent on streaming video compression. Not a method of implimenting it, but the abstract concept itsself. It's one of the ones listed in the h264 patent portfolio. The standards are so broad, there are many patents on the very concept of some technology. There are patents held on business methods, product interfaces, file formats. A lot of the time their purpose is just to promote vendor lock-in - for example, Microsoft patented the ASF file format and threatened to sue the author of Virtual
      • This is why I feel that whether a patent is awarded should depend on the amount of time and money a company spent coming up with the idea. It's one thing to protect an idea that came out of a decade of research funded by millions of dollars. But to protect an idea that came up in a 30 minute brain storming session? Like you said, software ideas are a dime a dozen, and those should not be protected, unlike the billion a dozen ideas. Patents should encourage a big research investment, not protect wealth.

      • Re: (Score:1)

        by izomiac ( 815208 )

        This happens especially often in the software industry, where the ideas are a dime a dozen

        With more than six billion people on Earth, I'd suspect there are exceedingly few truly original ideas. Seriously, think of some half baked invention you've been mulling over, and do a patent search. Most of the time someone has already filed one on it, whether explicitly or in a broadly-worded patent that covers anything a lawyer can contrive it to cover.

        The problem is that such ideas are rarely being actively developed. So either a) there are unresolved issues that make it impractical (hence unworth

    • The problem I see is the exponential nature of technological advancement. 200 years ago, a 20 year patent was fine because your patent won't be required for much innovation in that time. Now, lets say I patent the first computer core for a quantum computer. For 20 years, I have essentially stalled innovation in this country unless people pay me a lot more money than what they would normally have to.

      • Agreed. My compromise solution is to allow but fast-track granting of software patents, and then limit the term to 4 years from filing. Long enough in the internet age to make a tidy profit from your monopoly, short enough to allow competition to emerge in a relevant time frame.

    • Re:Obvious is different to different people (Score:4, Informative)

      by Bigjeff5 ( 1143585 ) on Sunday November 07, 2010 @11:01AM (#34154662)

      I'm pretty sure I wouldn't be able to understand any of the patents behind modern CPUs for instance, unless I spent an awful lot of time reacquainting myself with electronics.

      This has always been true. The point of patents is not so that anyone can build the thing in the patent, the point of patents is so that a competent engineer in the same field could build the thing in the patent.

      If you are a chip designer for AMD, you would definitely understand Intel's CPU patents. A transmission designer should be able to understand patents on transmissions. An aeronautical engineer should be able to understand a new airplane design.

      That's the point of patents. It has always been the point of patents, it isn't something that has developed over the last 50 years. They are not there to tell you, specifically, how to do something new. They are there to tell anyone who has the required background knowledge how to do something new. If you don't have the required knowledge to understand it, then the patent was never intended for you to begin with.

      • Re: (Score:2)

        by HiThere ( 15173 )

        That's the point of patents. It has always been the point of patents, it isn't something that has developed over the last 50 years. They are not there to tell you, specifically, how to do something new. They are there to tell anyone who has the required background knowledge how to do something new. If you don't have the required knowledge to understand it, then the patent was never intended for you to begin with./quote?

        Well, they don't work for that. So apparently they are useless, and companies that depend upon them are parasites. I really shouldn't claim that no patents work for that, as I've read very few of them. But it's certainly not required that patents "make patent" the invention they are purportedly revealing to "those skilled in the art", and common reports indicate that it is actively discouraged. This is reinforced because judges generally are not "skilled in the art" and so don't require that the invention actually be revealed. And the patent office no longer requires that a sample of the item patented be deposited. (For software, this should be the source code.)

        Personally, I'm not convinced that the whole idea of patents is a bad idea, but I do believe that it's a quite dangerous one, and that the current implementation is considerably worse than not having any patent system at all, and depending on copyrights, trademarks, and trade secrets.

      • If you are a chip designer for AMD, you would definitely understand Intel's CPU patents

        No, unless you know they've expired or have been licensed to you. Otherwise, you wouldn't dare look - if you blindly infringe on a patent in the course of your work, and sell a product based on it, you're potentially liable to damages. If you knowingly infringe on a patent in the course of your work, and sell a product based on it, you're potentially liable for treble damages for willful infringement.

        Since it's highly lik

    • and if you simply copy parts of the Core i7 design, you are breaching copyright law anyway.

    • I think Michele Boldrin agrees with you. His view is basically that the basic idea of patents is sound, but today's reality doesn't mesh well with that idea because of a radically different cost structure (i.e. the cost of starting a company and the cost of copying an idea is different from when patents where instituted).

      Here's his discussion with economist Russ Roberts on the subject: http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html [econtalk.org] (which links to his book, Against Intellectual Property, whi

  • Here's a Better Article (Score:4, Informative)

    by Nailer235 ( 1822054 ) on Sunday November 07, 2010 @10:24AM (#34154416)
    For those of us that don't want to read through the Federal Register, here's a summary of the current obviousness tests. I don't believe the removal of these tests will make it easier for patents to pass the obviousness bar; rather, this seems more like an effort to consolidate burdensome caselaw. http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html [patentlyo.com]
  • this is the solution of this problem. there were fools who were still defending the system with various excuses. but see, it gets worse everyday.

    and no. it being a bureaucracy or controlled by government doesnt matter. private or public, SOMEone will have to control and grant patents. and, it will eventually end up like this. in fact, if it was private, the situation would be much worse by now, since private corporations are easily dominated by their relevant interest parties, as we have seen from the fi
    • I would not say that all patents need to be abolished, but rather than we need to reform the patent system so that it best serves society. Society is not best served by a system that grants patents on abstract math (which, when you get down to it, is exactly what a patent on an algorithm is), business methods, or gene sequences. Let's bring the patent system back in line, and only grant patents on machines or materials, and only in cases where a sufficiently high level of innovation can be demonstrated.
      • again the same overly positivist approach.

        let me portray the situation with an analogy :

        "i would not say that feudalism needs to be abolished, but rather we need the reform the feudalism system so that it best serves society"

        extreme ? yes. in the same direction ? yes.

        something that awards the ownership of thoughts and thought concepts to private individuals, is a system that is akin to granting the ownership of entire land swaths to individuals. every time you pass that bridge of thought, you wi
      • The patent system is supposed to be a pragmatic institution. It barters away the rights of the public (and competitors) in hopes of greater disclosure and greater scientific advance. Thus, it is only just under the conditions that the benefits outweigh the costs. Figuring out what parameters this happens would require a good degree of independent scientific testing, although it would still be somewhat subjective. If there are no conditions under which the patent system is a net benefit, than the only ju
    • apparently the parent had contradicted with someone's political religion.
  • From the USPTO memo:

    This 2010 KSR Guidelines Update highlights case law developments on obviousness under 35 U.S.C. 103 since the 2007 decision by the United States Supreme Court (Supreme Court) in KSR Int’l Co. v. Teleflex Inc.

    and

    Comments concerning this 2010 KSR Guidelines Update may be sent by electronic mail message over the Internet addressed to KSR_Guidance@uspto.gov, or submitted by mail addressed to: Mail Stop Comments–Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 223131450. Although comments may be submitted by mail, the Office prefers to receive comments via the Internet.

    Although I don't think the typical slashdot response to patent law issues is going to do much to persuade anyone. Might want to brush up on your patent law before you comment. This article [erikjheels.com] might help a bit.

  • OMFG, where did you people learn to read?! (Score:5, Informative)

    by Dachannien ( 617929 ) on Sunday November 07, 2010 @10:41AM (#34154518)

    Although the other rationales discussed in the 2007 KSR Guidelines are not the focus of separate discussions in this 2010 KSR Guidelines Update, it will be noted that obviousness concepts such as applying known techniques, design choice, and market forces are addressed when they arise in the selected cases. The cases included in this 2010 KSR Guidelines Update reinforce the idea, presented in the 2007 KSR Guidelines, that there may be more than one line of reasoning that can properly be applied to a particular factual scenario. The selected decisions also illustrate the overlapping nature of the lines of reasoning that may be employed to establish a prima facie case of obviousness. Although the 2007 KSR Guidelines presented the rationales as discrete, self-contained lines of reasoning, and they may indeed be employed that way, it is useful to recognize that real-world situations may require analyses that may not be so readily pigeon-holed into distinct categories.

    Not only do they not say that they're getting rid of the seven KSR rationales, they actually reinforce the idea that examiners don't even necessarily have to use one of the seven rationales when making an obviousness rejection, as long as they can express their rejection in a way commensurate with the Supreme Court's reasoning in KSR.

    The only reason that the other four rationales aren't discussed in any great detail in these guidelines is because the Federal Circuit hasn't released any decisions invoking those rationales since KSR.

    • Oops. Should be "getting rid of any of the seven KSR rationales".

    • Re: (Score:3, Insightful)

      by Bigjeff5 ( 1143585 )

      Damnit, you just had to go and ruin it didn't you?

      What with your reading TFA and all. Punk.

      Don't bring your stupid facts into this discussion, we don't want them!

    • Not only do they not say that they're getting rid of the seven KSR rationales, they actually reinforce the idea that examiners don't even necessarily have to use one of the seven rationales when making an obviousness rejection, as long as they can express their rejection in a way commensurate with the Supreme Court's reasoning in KSR.

      Yep. I'm not sure if the article poster was simply freaked out because there was more than one paragraph in the 2010 guidelines, or what, but all of the same standards are in the 2010 guidelines. They're just clarifying and providing examples from case law for some of the most common rejections.

    • Re: (Score:3, Informative)

      by Bigjeff5 ( 1143585 )

      Replying again, I know, but it looks like TFA really jumped the gun big time. I only skimmed it, but it seems pretty clear to me that the 2010 guidelines only frame what patent officers are supposed to do once they've chosen one of the seven rationals laid out in the 2007 guidelines. It's a set of guidelines for applying the 2007 guidelines, it isn't a change in the rules in any way that I could tell.

      This is further made clear by the fact that the 2010 guidelines are completely, 100% unenforced. It's not

    • Here's why TFA summary seems to be correct:

      From http://www.ipeg.eu/blog/?p=1742 [www.ipeg.eu]

      According to the 2007 Guidelines, however, in addition to TSM there came into being with KSR six other tests for obviousness. These tests gave the examiners six new ways to reject claims and so help achieve the reduction in the patent allowance rate which was such an important goal for the PTO under its then-Director, Jon Dudas.
      [...]
      In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.

      And.

      • Okay, the first IPEG quote is simply in error. As I mentioned above, the reason why not all of the obviousness rationales were discussed in the FR notice is because not all of the rationales have been invoked by the CAFC since KSR. Not only do all the rationales survive - they were indicated as valid by the Supreme Court, after all - but the FR notice expands upon that by calling attention to the fact that SCOTUS intended those rationales as exemplary rather than all-encompassing, meaning that other ratio

  • There are far too few idiotic patents submitted nowadays. These elitist barriers of entry have to stop!

  • It's not like they weren't ALREADY rubber-stamping approval of patents which e.g. apply a known technique to improve similar products. This just formalizes their actual practice.

  • Stupid Article (Score:5, Informative)

    by the eric conspiracy ( 20178 ) on Sunday November 07, 2010 @11:53AM (#34155018)

    The referenced article draws conclusions completely at odds with the actual USPTO notice.

    I guess it's to be expected that anything appearing on Slashsdot regarding patents would be totally erroneous, but this is one of the worst examples ever. In fact the USPTO encourages examiners to use reasoning outside the examples, which would be considered a BROADENING of the obviousness guidelines.

    This story is quite the howler. Well done Slashsdot; you have hit a new low here.

  • Needs a "TFA is Wrong" tag (Score:3, Insightful)

    by Bigjeff5 ( 1143585 ) on Sunday November 07, 2010 @11:53AM (#34155022)

    Seriously, it seems pretty clear swpat.org didn't even bother to read the 2010 Guidelines, and they even posted them!

    The new guidelines don't do anything the summary or TFA say. You can't even get mad at the summary, except for obviously not reading TFA either (at least not beyond the first few lines).

  • Part of the problem here is that it is very hard to talk about what is obvious after you've been told the idea. This is the problem of the Egg of Columbus [wikipedia.org]. Challenge someone to make an egg stand on end with no tools and they are likely to fail. Show them someone smash one end of the egg and then make it stand, and they are going to say that making an egg stand on its end is obvious. One the other hand this kind of reasoning can be used to argue that some stupidly obvious things are actually deserving of a p
    • A day or so seem like a very short time for a twenty year monopoly. While not something easy to measure, I would say that something would be expected to otherwise not be available to the market for at least 3 to 5 years for it to justify that period of exclusivity.

      • Re: (Score:1)

        by NoSig ( 1919688 )
        I agree. The problem is that it is quite expensive to hire a team of experts for more than a day. Probably the idea is a non-starter because it is too expensive to hire a team of experts for even one day. Do note that the suggestion is that if a team can come up with the idea in a day, given the problem to solve, then the idea is too obvious. I do not propose that if the team don't solve the problem in a day, then the idea is non-obvious. Still, the ideas generated and certainly the opinions of the team on

  • Is for the FSF or some other trustworthy organization to commit a patent spam atrocity that involves patenting all sorts concepts related to generating patent applications. Perhaps they can patent the abstract concept of a mental algorithm by which numerous obvious patents can be generated from a single thought. Maybe they should go all the way and patent the abstract concept of a mental algorithm -- just make thinking an activity that might cause expensive litigation while simultaneously making thinking

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