Supreme Court to Rule on 'Obvious' Patents

davidwr writes "News.com reports the U.S. Supreme Court will take up KSR v. Teleflex, a patent case in which the defense is arguing the patent is obvious and should be thrown out. The case hinges on a 1952 provision of patent law. Interestingly, several major IT firms are supporting the defense."

Comments

Very narrow ruling

[ryants]

I'm not a Supreme Court expert (I'm not even an American), but I can't imagine a ruling that would allow people to start challenging patents on "obviousness". I imagine the ruling will be very narrowly confined to just the circumstances of this particular case.

Re:Very narrow ruling

[stubear]

The Supreme Court does to rule on narrow issues. If a case makes it to our Supreme Court, prepare for a shift in our legal system.

Re:Very narrow ruling

[happyemoticon]

I didn't RTFA, but supreme court rulings can often have very far-reaching implications. For example, the case "Marbury vs Madison" established the tradition of judicial review. In some other legislative systems, all laws are automatically in harmony with the constitution. However, due to that one case and a really ballsy Chief Justice, courts in general and the Supreme Court in particular can essentially say that a law is bogus and strike it from the law. Then there's Brown vs Board of Education, which (after much fighting, ignoring, pain, suffering, and tribulation) paved the way for equal access to education and public services regardless of ethnicity.

If I had to guess, whatever the outcome, a hard battle is still ahead for those opposed to stupid patents - but depending on how it's worded, this could be a turning point.

Re:Very narrow ruling

[stubear]

that should read, "The Supreme Court does not...".

Re:Very narrow ruling

[darkmeridian]

Nope. The Supreme Court last visited patents when it decided Markman in 1997. The Supreme Court did not take this case along with Metabolite just to rule narrowly on the facts. Indeed, it the fact-specific nature of patent courts that has been one of the largest complaints the patent bar has had with the Federal Circuit. Most notably, the Fed. Circuit's treatment of claim construction has been abysmal. Claim construction is when the judge decides exactly what the patent purports to have patented. Obviously, this is crucial and in many instances result-determining. Markman said it was the judge's job to interpret patent claims. The Federal Circuit then refused to take appeals of claim constructions before the entire trial had concluded. Once the entire 2-3 year trial has ended, the loser can appeal the claim construction to the Federal Circuit. About 40% of the cases on appeal on this point are overruled. So that's 2-3 years of litigation down the drain.

I'm guessing the US Supreme Court wants to make it easier to beat down patents. Instead of making everything dependent on whether a patent for a three-bladed razor is infringed by a razor with four blades, the question is whether the subject matter is obvious or unpatentable, which is less depdendent on the ultra-fact specific lawyer games everyone plays on what "includes" means in a patent.

Re:Very narrow ruling

[mattmacf]

I can't imagine a ruling that would allow people to start challenging patents on "obviousness"

Really? I thought that by definition a valid patent must satisfy the requirement of being non-obvious. The problem ATM isn't with the judicial system. Generally the patents that make it into court are ruled on appropriately, but the cost of challenging a meaningless patent in court is much more than having to license the "obvious" patent. What KSR is looking for is a change in the definition of what consitiutes an obvious patent. From the CNET article:

In a brief supporting KSR's arguments (click for PDF), Microsoft and Cisco charged that the current test applied by the Federal Circuit "hurts innovation" because it establishes "far too lenient a standard for patentability." Cisco has even built up a portfolio of patents for "defensive purposes" in order to "neutralize" a proliferation of trivial patents, the brief said.

Hopefully the Supreme Court will adjust the definition of "obviousness" and these changes will make their way into the patent system itself. What we really need is a system that will routinely reject patents that are blatantly obvious, negating the patent trolling mess we have now.

Re:Very narrow ruling

[Planesdragon]

I can't imagine a ruling that would allow people to start challenging patents on "obviousness".

You apparantly don't live in a nation of law and judicial review.

the case would never have gotten to the supreme court if we weren't allowed to challenge a patent as being obvious. It's part of the law, both in America and in every nation whose laws have shaped to adhere to ours (and vice versa). The question here is, HOW obvious the patent has to be to use.

Re:Very narrow ruling

[Kr3m3Puff]

Actually it is hard for the Supream Court to ever weigh in on a narrow set of rules. Here they have agreed to take on the question of what is "obvious" and that is what is being argued in front of the court. This ruling will have a large impact on that the implications of the 1952 patent law should consider "obvious".

The Supream Court always decides the case based on the point of law being argued. They usually never broaden or narrow the scope. Often times you can be "right" but simply not have asked the proper question to the court, therefore not getting the answer you seek. It is a fun and interesting business...

It is interesting that it basically says someone who is skilled in the particular area would consider the invention obvious should not be awarded a patent. It should be interesting how much

Re:Very narrow ruling

[Comatose51]

Yes it does actually. It has ruled in the past about the meaning of a comma in some sentence of our tax code. That's how narrow it can get. In fact, the SCOTUS tend not to overrule previous rulings but rather distinguish a current case from a previous case. One of the goals of our legal system is for it to be predictable. SCOTUS tries to uphold that as much as possible. Part of the reason the Federal circuit was created specifically for patent laws is to prevent forum shopping which has a tendency to make patent cases unpredictable. IANAL.

Re:Very narrow ruling

[IconBasedIdea]

That is not the case with the Roberts court. The Clarence Hill lethal injection case got a very narrow ruling earlier this month, as was the MGM/Grokster ruling. Narrow court rulings are far from rare, and as the Cheif Justice himself points out, narrow rulings are more likely to be unanimous decisions, or close to it. From a speech this month at Georgetown:

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."

Re:Very narrow ruling

[ClamIAm]

Roberts court

I'm really wondering how much of a shift the new court will show in its rulings. I don't know if Rhenquist was tons different from Roberts/Alito, but I certainly believe they'll differ from O'Connor.

Re:Very narrow ruling

[Vengie]

Please start your posts with IANAL instead of ending it with IANAL. That way, those of us that actually went to law school don't have to get angry when you miss the mark. Thanks. It's not your fault, but in all honesty, I don't pretend to understand things I dont understand the finer mechanics of. SCOTUS rules on major issues all the times, and regularly re-interprets precedent.

Re:Very narrow ruling

[Ohreally_factor]

In fact, the new Chief Justice what's-his-name recently spoke about the desirability of narrow rulings. A byproduct of narrow rulings is a court that can achieve consensus and consensus reinforces the validity of the interpretation.

Re:Very narrow ruling

[Internet Ronin]

Obviousness is very strictly constructed. In fact, a patent infringer that obtains personal success from their infringing item makes the patent non-obvious. RIM found this out when they argued obviousness against NTP. They claimed NTP's patents were too obvious to be patented (such so that a person reasonably strong in that field would be able to do it on their own). NTP argued, with supporting precedent, that because the Blackberry Service was so successful the concept was non-obvious.

Much of the clamoring for patent reform can be solved by loosening standards that maintain entrenched patents. One way that can be achieved is to open up the definition of obviousness, thus allowing some patents to be more easily overturned. There are hundreds of standards that can be lowered, or opened if you prefer, allowing for more entrenched patents to be overturned.

Re:Very narrow ruling

[Ohreally_factor]

The changes to the patent system itself that you suggest will only happen thru an act of Congress. While the courts can overturn a patent office decision, they can't impose their will directly on the patent office.

All the Supremes can do is rule on this particular case, which will give guidance and a precedent for lower courts to follow. Unless the patent office itself were to be brought before the court (somehow), the court cannot dictate to it. That would be infringing on the Executive Branch, which operates the patent office (according to the laws enacted by Congress).

Re:Very narrow ruling

[ollj]

A wild Lawlimon appears! Lawlimon attacks with "obviousness".

Re:Very narrow ruling

[Anonymous Coward]

Please start your posts with IANAL instead of ending it with IANAL.

And please start your posts with "I am anal" so we know we can avoid trolling.

Re:Very narrow ruling

[onemorechip]

he Supreme Court last visited patents when it decided Markman in 1997.

Aren't you a little out of date?

Re:Very narrow ruling

[jmitchel!jmitchel.co]

OH! You've "went to law school". You do realize that on Slashdot, claiming IAAL and a couple bux might buy you a cup of bad coffee. But GOD! they might throw in a doughnut for 70 cents if it weren't for idiots like him who forget to admit they're not lawyers until the end of their Slashdot posts!

Re:Very narrow ruling

[Anonymous Coward]

Just a note: Brown vs. Board of Education was actually a reversal of Plessy vs. Ferguson, the decision in which the US Supreme Court blessed the doctrine of "separate but equal" and caused much of the misery you cite. Maybe Brown was a noble gesture, or maybe it was a lame, long-overdue correction of a flagrant mistake that caused untold misery in the USA.

Re:Very narrow ruling

[anagama]

Don't bother RTFA. The FA is terribly written and confusing. For example:

That court has ruled, for instance, that even "a combination of preexisting, off-the-shelf components in which each component performs exactly the same function that it had been known and was designed to perform," KSR wrote in its petition for review by the Supreme Court (click for PDF).

That's an entire "paragraph" from the article. Notice how the main sentence goes nowhere? Essentially it says "the court has ruled that." Ruled what? All in all, this whole situation is appalling. Obvious patents are appalling and TFA is appalling.

Re:Very narrow ruling

[norton_I]

I am not sure how this might work in this instance, but when laws are delclared unconstitutional, it is in a lawsuit targeting the executive branch, enjoining them from enforcing a law. While on paper it looks like such a ruling only affect the individual case at hand, precedent dictates that withing the guilelines of the verdict, it applies to all infractions of the struck down law. Presumably, something similar would happen if the verdict of a patent infringment declared that the criteria used by the patent office in accepting a patent were not harmonious with the constitutional mandate to protect IP and/or the patent laws passed by the legislature, the effect would be to change the way the USPTO issues patents. This is possible even if the ruling if relatively narrow.

Re:Very narrow ruling

[Arker]

I can't imagine a ruling that would allow people to start challenging patents on "obviousness".

I have a feeling the above post was written specifically to show how ignorant many of the moderators are. Plus 5 "insightful" - hah. Obviousness is and has always been a valid challenge to patents in this country, and to the best of my knowledge all countries. It's a specific requirement that in order to be patented, an invention must be non-obvious, and many court battles have been fought over whether or not a particular patent was obvious and thus invalid. So that's just... a rather bizaare comment, however you look at it.

The issue in this case is, however, narrow. The federal appeals court that gets ALL patent appeals (and this is a problem in its own right) has set forth a rather narrow and difficult criteria for what constitutes obviousness, resulting in many things that are 'obvious' in the normal meanings of the word being ruled 'non-obvious' legally, and the appelants are trying to get the supremes to over-rule that and impose more sane criteria.

I wish them luck, but even a good ruling here is unlikely to significantly reduce the burden the patent office is imposing on the general good.

Re:Very narrow ruling

[Anonymous Coward]

All the Supremes can do is rule on this particular case

Meanwhile, Diana Ross, Smokey Robinson, and the Miracles all dissented.

Re:Very narrow ruling

[DrSkwid]

Dude, this is /. it is best to assume NO-ONE is a lawyer, even if they say they are !

FYI. I went to comprehensive school.

Re:Very narrow ruling

[PHPfanboy]

Dude, this is the internet. Best to assume all people are dogs, even if they say they aren't.

Re:Very narrow ruling

[Ohreally_factor]

That would still send it back to Congress, if a patent law were found unconstitutional. It would be up to Congress to pass a new law that was constitutional. It is possible that it could happen this way, but it's highly improbable, due to the nature of the claim. The appeal itself is fairly narrow, and is not claiming that the law itself is unconstitutional. Rather, the grounds for the appeal are that a lower court did not use a proper test to determine the validity of a patent, i.e., the test for obviousness. In this case, the defendant is claiming that using off the shelf parts to create a brake pedal is an obvious idea to someone in the trade, and therefore not patentable. If they prevail, this will have far reaching implications, to be sure. But it's highly doubtful that the court will rule broadly on this issue, especially because the claim itself is fairly narrow. Don't expect the patent system to be turned on its ear.

It wouldn't necessarily apply to any patents that we might think of as obvious, unless those patents were the subject of litigation before a court, and it might only apply to patents that involve off the shelf components. Yes, this is important, but even if the defendant wins, it's just one chip out of many we need to reform the patent system. It would be a great victory, but it's effects will still be limited.

In any case, I believe that the court is going to rule narrowly. Chief Justice Roberts spoke recently on the subject of broad and narrow rulings, and said he preferred narrow rulings. One reason for this was that narrow rulings tend to get greater consensus among the Supremes rather than split decisions. Consensus implies validity while a divided court implies controversy, i.e., the matter isn't settled with finality.

Re:Very narrow ruling

[Khyber]

I am anal is redundant. If you're going to be a lawyer you could at least understand redundancy in acronyms and wording of legal phrases, it's what you're trained in for crying otu loud! (I'm typing this with a lawyar nagging behind my ear, forgive me!) Hell, we learned that in Latin class in high school. Ecce! Canis liberi ed comedit! Come on!

Re:Very narrow ruling

[kf6auf]

The other reason Reagan created a federal circuit specifically for intellectual property issues is so he could appoint all the judges since they liberal judges weren't helping his policy much. Everything else just helped him sell the idea to everyone else.

Re:Very narrow ruling

[ajs318]

I can't imagine a ruling that would allow people to start challenging patents on "obviousness"

Where have you been living? Obviety is probably the number one reason not to grant a patent!

Re:Very narrow ruling

[bytesex]

I'm not from the US either, but I understand that the power of 'precedent' is very strong in the US legal system (ruled like so-and-so once for this law under these circumstances, must rule like so-and-so forever for this law under comparable circumstances) above a certain level of court. This is not so much the case in countries not based on anglo-saxon common law, where judges are much more free to judge based on the circumstances of a particular case.

Re:Very narrow ruling

[Warg! The Orcs!!]

Dude! This is the Internet, best to assume that everyone is a spotty, 15yr old male with poor social skills, even if they say they're not.

Dude! This is the Internet, best to assume that someone is not a 13yr old girl, even if they say they are.

Re:Very narrow ruling

[ajs318]

Well ..... obviety is a strange beast. The moment someone mentioned to me that someone had invented {and patented} a refrigerator door that could be opened from either side without needing to be re-hung, I knew how to build one -- even before they had described how it worked. Should I have tried to get the patent struck down for being obvious? {Then again, I always used to know the Countdown Conundrum the instant someone buzzed in, as though the sound of the buzzer rearranged the letters in my head. Maybe this is a supernatural power?}

For my part, I'm behind KSR. All they seem to have done was assemble some standard components as per the instructions. A lot of the defensive patents that coporations have accumulated might now be struck down for obviety, which can only be a good thing in the long term.

Re:Very narrow ruling

[houghi]

Please start your posts with IANAL instead of ending it with IANAL.

I asume that everybody is not a lawer on Internet, no matter what they say. Neither that are anything else. I asume that every posting starts with IANA*

Re:Very narrow ruling

[squiggleslash]

No, the first way was fine, even if it invalidated the second sentence. The Supreme Court does, on occasion, make rulings that really can't be applied to anything.

The two examples that actualyl spring to mind are, interestingly enough, quite infamous. One was the 2000 election ruling, where the majority ruling included language that made it explicit that their decisions were setting no precedents whatsoever. The other was a recent case where a local government was planning to sieze private land and give it to a developer, where SCOTUS actually said (to much (deliberate?) misunderstandings later), that it, a national body, isn't in a position to judge what is locally in the public interest, and therefore determine whether this particular siezure was constitutional or not.

In one case SCOTUS was saying "You can't second guess us in future about these issues, we might rule the other way if it happens again, nuh nuh", in the other "How the fuck should we know? Stop asking us these questions, take some responsibility for once."

BTW, IANAL.

Re:Very narrow ruling

[brdaaw]

please start your posts' sentences with a preposition, not end them with one (...fine mechanics of). also,its all the time...not all the times. if youre gonna be a persnickety prick and claim you are a lawyer (ha), you should at least be able to type four sentences without mistakes. i make no claim to a law degree. i am but a lowly mech-e. therefore, I should not be correcting a lawyer's grammar. also, i believe it is spelled reinterprets. :P

Re:Very narrow ruling

[stevenm86]

So what exactly is SCOTUS?

Would many of us slashdot readers even get past reading SCO... before getting into flame mode?
Seriously, the Supreme Court has made rulings like this in the past, especially some of the school related cases in the 50s... They made one ruling based on the facts on the case but set a different standard for further cases pretaining to such matter.

Re:Very narrow ruling

[MrLint]

Well, in context, considering that nearly no one on /. is a lawyer, shouldn't it be 'obvious' they arent and IANAL unnecessary ;)

Re:Very narrow ruling

[mikiN]

I asume that every posting starts with IANA*

Of course every posting starts with IANA. How else would your computer know what parameters to pass in the various protocols it uses when posting to Slashdot? Who else makes sure the '.org' TLD isn't taken over by the porn industry or Scientology? Who else assigns the IP ranges to the Regional Internet Registries that Slashdot's ISP uses?

Yep, cheers to IANA for keeping all that organized.

Re:Very narrow ruling

[jcidiotashram]

let me say something about obvious. once you are exposed to something, then it becomes obvious. there are so many scientific results that you take for granted. when people talk about Newton and his famous invention called gravity, i used to think, give me a break, an apple falling down, if he didn't get it, somebody would have. it was so obvious. this was my thought when i was a kid. then i went to college, and i was exposed to Newtonian Mechanics(that was a completely different subject). we should be armed against some trolls, who just patent any thing they could get their hands on, instead of new invention or discovery.

Re:Very narrow ruling

[acroyear]

And like Scalia's "originalism", Roberts has already shown he's a liar willing to let this principle be damned for the sake of getting the ruling he wants.

Re:Very narrow ruling

[Anonymous Coward]

Please avoid ending a sentence with a preposition. Thanks.

Re:Very narrow ruling

[gmack]

It's an exact quote fom the ruling. INAL but it's saying that you can even patent the result of putting a bunch of parts together even if each part was used exactly as it was designed to be used.

Re:Very narrow ruling

[bcat24]

LOL, I guess nobody knows.

Re:Very narrow ruling

[mrchaotica]

...the constitutional mandate to protect IP...

Gah! What are you talking about?! There IS NO Constitutional mandate to protect IP!

See, this is why we're having so much trouble with patent trolls and DRM: people have a fundamental misunderstanding about what that clause in the Constitution is all about!

First of all, it does not "mandate" anything; it merely allows it. "The Congress shall have power to" enact copyright and patent law, but it is not obligated to do so.

Second of all, the clause is explicitly designed "to promote the progress of science and useful arts," not to "protect IP!" Indeed, if it were designed to protect "IP" (a term that did not exist when the Constitution was written; they simply called it a "monopoly") it wouldn't have had a "for limited times" clause!

Re:Very narrow ruling

[PHPfanboy]

Laugh all you like, that's exactly what I was referring to.
Apparently some spotty 15 year old thinks that's redundant. Pah.

Re:Very narrow ruling

[Zenaku]

Seven sentences, four uses of the first-person personal pronoun, and yet only one capital letter. I agree, you should not be correcting his grammar.

Re:Very narrow ruling

[Ihlosi]

I'm not a Supreme Court expert (I'm not even an American), but I can't imagine a ruling that would allow people to start challenging patents on "obviousness".

In other countries, being "not obvious" is a requirement for getting a patent in the first place.

Re:Very narrow ruling

[bcat24]

[sarcasm]Heh, you gotta love the mods.[/sarcasm] I thought everybody on Slashdot had seen that cartoon, spotty teen or not.

-- bcat, who is 15 years old, but (hopefully) not too spotty.

Re:Very narrow ruling

[s!mon]

I am a patent agent (lawyer soon). The problem with obviousness is that when expressed in general common terms you cannot understand it. What is obvious? And to who? Its a very subjective standard and leads to very inconsistent decisions. Even as the law is now, the decisions are arbitrary if the person doesn't have a thorough view of the law. Everybody likes to jump up and scream its obvious, but have you ever thought at the time it was created, it *wasn't* obvious. Hindsight is 20/20 - so this alone makes the obvious standard really difficult.

With that said, they are not challenging obviousness. They are challenging the motivation-suggestion-teaching requirement of obviousness. Basically, the reference has to motivate/suggest the inventor to combine the references (and both have to be before the date of filing the patent application). And thats a quick 2 second version, its not an easy area of law and a lot of people get confused, including patent attorneys.

The whole area of "obviousness" combines 2 references and says this combined with that teaches each and every element of your invention. It would have been obvious to a person having ordinary skill in the art to combine these two to achieve the result you obtained. Do you see how tricky that is? What does any of that really mean?

Now Cisco and Microsoft have valid points, but the standard as is set now is at least workable. But if you throw out the "motivation" requirement, which was created by the CAFC because the obviousness standard was completely arbitrary in the 80's, then - the whole area of law becomes pretty much arbitrary once again. Its not going to cut down the number of patent applications, all its going to do is cause more appeals and more work for the USPTO.

There are *other* changes that need to be made. For example, make the burden for a patent higher by requiring industrial applicability (as in, capable of being made). Create the utility model patent for simple inventions. Getting rid of business method patents (already worthless because first office action is generally at least 5 years after filing).

Re:Very narrow ruling

['nother poster]

Ok, young man. You just take that logic and go to your room. I don't want to hear any more of that public domain is a good thing talk. Who do you think you are siding with those viscious, heartless monsters who wrote the constitution rather than the warm, loving coprporations who are just trying to scrape out a meager living making a few hundred million with the sweat of their lawyers brows.

Re:Very narrow ruling

['nother poster]

Its not going to cut down the number of patent applications, all its going to do is cause more appeals and more work for the USPTO.

Good. Then maybe congress will get off their lazy asses and pass some patent laws that can be applied in a sane way. I don't expect that to happen though. If they did actually do an overhaul of the patent process it would be to make it easier for corporationas and harder for individuals to get patents as well as extend the terms to rediculous lengths like copyright.

Re:Very narrow ruling

[Anonymous Coward]

INAL but it's saying that you can even patent the result of putting a bunch of parts together even if each part was used exactly as it was designed to be used.

I agree with your guess at what it was supposed to mean. The problem is that the entire paragraph is nothing but a sentence fragment. It was supposed to say "Even X is patentable", but instead it says "Even X", period. The "is patentable" is missing. It's atrocious writing.

Re:Very narrow ruling

[laffer1]

I wouldn't assume the supreme court wants to make it easier to beat down stupid patents. Remember who did the last appointments to the supreme court? Patents help monopolies. The best we can hope for is a very narrow verdict so no more harm is done.

Re:Very narrow ruling

[plague3106]

I had a discussion with the parent poster at some length; he definatly is a lawyer.

Re:Very narrow ruling

[TheKnightWhoSaysNi]

Whoosh!

Re:Very narrow ruling

[Anonymous Coward]

WHOOOOSH!

I am anal is redundant.

No it wasn't. Someone bitching about top vs bottom placement of "IANAL" is indeed being anal. Just in case you're still confused, "anal" is being used as a word, not as an acronym.

Re:Very narrow ruling

[Anonymous Coward]

IIRC, before Newton, the belief was that there were two forces, one that caused objects to move straight down (like the apple), and one that caused objects to move in orbits (like the moon moving about the earth or earth around sun). Newton showed that only one force was needed.

Re:Very narrow ruling

[Alsee]

I agree the Eminnent Domain case is widely missunderstood, and I think you're still missunderstanding it... or at least explaining it poorly.

As I understand it, the issue is that the Constitution permits the government taking of property (with just compensation) for "public use". The case at hand was the taking (with just compensation) of private property for the public purpose of economic stimulous and development, and the turning over of that property for private use in commerce.

So the question was, does the Constitution's "public use" clause narrowly mean public usage such as roads and parks, or does "public use" encompass "public purpose", which may ultimately result in private usage of that property.

My initial reaction on hearing the superficial case in the news was outraged opposition, on reading the ruling I am reluctantly forced to agree that the neccessary and historical application of the clause does indeed include "public purpose". That rejecting such an interpretation would bar too many legitimate and vital applications of the Eminent Domain clause.

One of the most important (and oft overlooked) aspects of this case that alleviates my concerns is that it was not in fact a case of taking property from person A in order to turn it over to favored private party B. It was a taking of property from party A to the government itself, and an economic development zone plan to sell it to some unknown unspecified party B.

Had some company gone to the government and said "I want that person's land", and the government tried to seize that land to force that sale, that would have been a Very Very Bad Thing. That would have been Unacceptable. But this really was a case of the government taking the land to itself for a public purpose, without being for the benefit of any identifiable predetermined private party. While the case still makes me uncomfortable, I think that key point makes it an acceptable and correct ruling.

-

Re:Very narrow ruling

[MarkGriz]

"I'm not a Supreme Court expert (I'm not even an American)..."

but you *did* stay in a Holiday Inn Express last night, right?

Re:Very narrow ruling

[Russ Nelson]

If you read the filing with the court, you'll see that they merely want the Supremes to rule that using two devices together, as the devices were designed, is not an invention. "Obviousness" goes way beyond that. There are many many problems whose solution is obvious once the problem is posed. These solutions ARE inventions, are currently patentable and should not be.

Re:Very narrow ruling

[ChrisA90278]

I would tend to agree with you except for one thing. The Supreme Court gets to pick the cases it hears. It only picks a slim minority of cases and lets the decisions of lower court stand in most cases. So we have to ask ourselves WHY did the Courst choose to hear this case. Most of the time they select a case where some interrsting point of law needs to be decided and they chose a case that will allow then to settle some point of law. Other times the case itself is importent. This sounds like a case where they want to settle something. Being over narrow would not do that. How ever they might still make a narrow judgment if the court can not agree on a widder one but I'll bet narrow is there their intent going in. I am a total non-ecpert too. I doubt many experts have time to read slashdot.

Re:Very narrow ruling

[Nom du Keyboard]

the SCOTUS tend not to overrule previous rulings but rather distinguish a current case from a previous case.

Could this be that they don't attack previous rulings simply to set the precedent of not having future courts attack the current court's rulings as stupid, over-broad, legislating from the bench, and politically motivated? After all, who wants that on their legacy?

Re:Very narrow ruling

[Anonymous Coward]

Just a heads up; as much as it is used on the net, I am fairly positive that "obviety" is not a word. You probably mean "obviousness".

Re:Very narrow ruling

[tsobo]

Exactly how does "science and useful arts" not include Intellectual Property? The whole US Patent and Copyright systems are based on giving limited ownership to original ideas--granting IP rights--as specifically encouraged by this clause of the Constitution. Sure, it's not "mandated", and the "for limited times" clauses really does need to be enforced, but don't confuse what "IP" actually is with what the mega-corps want you to think it is.

Re:Very narrow ruling

[HTH NE1]

Had some company gone to the government and said "I want that person's land", and the government tried to seize that land to force that sale, that would have been a Very Very Bad Thing. That would have been Unacceptable. But this really was a case of the government taking the land to itself for a public purpose, without being for the benefit of any identifiable predetermined private party.

Isn't that laundering, just applied to land instead of money?

Re:Very narrow ruling

[norton_I]

Well, in this case I am thinking the desired ruling (by KSR) would be to indicate that the patent office and the lower courts were not adhering to the laws already passed by congress. Therefore, it wouldn't necessarily go back to congress (though they might choose to pass a law clarifying what they meant by obvious). If that were so, I don't think it is unreasonable to imagine that it would change the standard practices in the USPTO.

I don't imagine this will fix all the problems either.

Re:Very narrow ruling

[llefler]

the new Chief Justice what's-his-name

Now this is the way to authoritatively pound your point home.

Re:Very narrow ruling

[bigpat]

Had some company gone to the government and said "I want that person's land", and the government tried to seize that land to force that sale, that would have been a Very Very Bad Thing. That would have been Unacceptable. But this really was a case of the government taking the land to itself for a public purpose, without being for the benefit of any identifiable predetermined private party. While the case still makes me uncomfortable, I think that key point makes it an acceptable and correct ruling.

What? You seem to be going through some hoops not to see this for what it was. So as long as the local politicians don't actually say who they are going to give the property to, whether it be some wealthier individual or corporation, until 10 minutes after they take it from you, then it is all well and good as long as the deed is actually held by the town for a moment? The Connecticut case was little more than government forcing a sale. The Supreme court redefined public purpose to mean that the public would benefit (as defined locally) rather than simply that the land would be used by the public.

But as angry as I am about that particular case. I think it does open up interesting possibilities. One of the biggest reasons for the property tax has been to keep land from being aggregated by individuals and families and not put to economic use. But if land can be taken (with compensation still) for the explicit purpose of reselling it for private development, as long as it serves the public purpose of bettering the economy or some other publicly defined purpose, then there is no legitimate fear of a landed class developing. So, the property tax can now be safely eliminated (with eminent domain laws that allow for seizure in the case of disuse) in favor of income and sales taxes which tax actual economic activity rather than an arbitrary perceptions of wealth.

Also, state laws could give renters the right to apply for eminent domain against the owners after a period of time, to support the public purpose of having more people own their own homes. Really the possibilities are intriguing.

Re:Very narrow ruling

[Anonymous Coward]

That a patent is required to be nonobvious is not the same as whether it can be challenged on grounds of obviousness. The court can take a stance similar to what they did on copyrights with respect to the "promote progress" phrase and claim that it is not the court's place to decide what is obvious or not. If they do that, one can't take an "obviousness" complaint about a patent to court, but patents still need to be nonobvious (to the patent office) to be granted.

Re:Very narrow ruling

[Anonymous Coward]

Please start your posts with IANAL instead of ending it with IANAL.

I am not a proctologist, but I know an asshole when I see him.

Re:Very narrow ruling

[mrchaotica]

Exactly how does "science and useful arts" not include Intellectual Property?

You're entirely misunderstanding the thing. You seem to be trying to directly substitute the two phrases, and read it as "To Promote the Progress of [Intellectual Property]." Well, that's wrong.

First, the term "Intellectual Property" did not exist when the Constitution was written. It didn't even enter their minds that ideas could be considered property in the same way that land or objects were; they thought of copyrights and patents as "monopolies." So you can't make that word substitution to begin with.

Second, the important part is "promoting progress," and the rest of the clause only exists to clarify that they mean progress in terms of increase of human knowledge and culture, as opposed to some other kind of progress. It does not mean "promoting property."

"Science and the useful arts" refers to the ideas themselves, not any other issue attached to them.

In other words, you could rewrite this:

To promote the progress of science and useful arts,

to this:

"We want to encourage growth in scientific knowledge and culture,"

and this:

...by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

to this:

"...and this is the method by which we'll try to achieve that goal: by inventing temporary monopolies to people that create new works and ideas so that they'll be encouraged to create even more."

As you can see, the stated goal is progress, not monopoly rights and compensation. Those are only a means to the end and side effect.

Get it now?

Re:Very narrow ruling

[orasio]

Nonsense.
A slashdot poster is, by default, not a lawyer.
We could have an acronym to clarify when people don't have an IT-related job, but that whole IANAL thing is just stupid. People here are usually not lawyers, obviously. There's no need to state that we are no lawyers. I post about Linux, and I'm no kernel expert, although I use it, and I know some things about them.

Re:Very narrow ruling

[Lehk228]

wow, you get angry when you see incorrect legal information on slashdot?

you must be the angriest motherfucker in the world

Re:Very narrow ruling

[Alsee]

The Supreme court redefined public purpose to mean that the public would benefit (as defined locally) rather than simply that the land would be used by the public.

(1) I think you mean to say that the Supreme Court redefined "Public Use", as that is the term in the Constitution and the one they were ruling on the meaning of.
(2) If you read the ruling, this court did not "redefine" anything. The ruling cited several examples and long standing precedent that it has always been defined and read this way.

So as long as the local politicians don't actually say who they are going to give the property to, whether it be some wealthier individual or corporation, until 10 minutes after they take it from you, then it is all well and good as long as the deed is actually held by the town for a moment?

The issue is purpose, and the courts are pretty good at smacking down attempts to violate the Constitution by means of holding up a fraudulent and superfical mask of a permissable purpose.

So no, if a company lobbied the government to do them a favor of seizing some property to turn over to that company, then that seizure would be unconstitutional no matter what facade the government crafted to conseal that illegitimate purpose.

What is the purpose? Why is the government doing it? That's the distinguishing factor.

As far as I have seen in the case, the government had no intent of acting for the purpose of enriching or favoring some private entity. As far as I have seen of the case, they had no buyer in mind at all to receive that land. As far as I have seen of the case the sole intent and purpose of the Eminent Domain seisure was the public purpose of general economic stimulous in an economically collaped region.

I understand and share your concern - it is indeed cutting the line very close. It is indeed a very small step to turn this to an abusive purpose. I say cases like this warrant very close scrutiny against such an attempt at abuse. And as a razor thin 5-4 decision of such controversy, I feel confident that the Supreme Court is itching for the chance to smack down the first government body that attempts to use this ruling as a cloak for abuse.

to keep land from being aggregated by individuals and families... could give renters the right to apply for eminent domain against the owners after a period of time

Chuckle. You hit an almost perfect bullseye on one of the examples cited in the ruling justifying the outcome.

At one point in time some 85% of the land on Hawaii was held by a cartel of five owners. The the 5 owners refused to ever sell any of the land at any price, permitting only leasing of the land. Homes, stores, offices, warehouses, manufacturing, everyone and everything had to lease their land from these 5 owners. These five held incredible control over all aspects of the economy, they severely distorted all aspects of the economy, and they used their monopoly power to maintain the lease rates at inflated levels. The entire economy and the entire population were at the whim of these 5 owners.

The State of Hawaii passed a law that the residents and businesses have the opportunity to buy out these leases at fair market value, and that that be enforcable through the power of Eminent Domain.

Private land being taken by the government and turned over for private ownership and private use of individuals and corporations. It's the exact same principle as the present day case.

-

Re:Very narrow ruling

[rrohbeck]

One of the goals of our legal system is for it to be predictable.

With juries, and laws that are formulated in such a way that they have to be interpreted by courts, and the Precedent system to pin them down? You must be kidding.
If anything, it is designed to be flexible.

Re:Very narrow ruling

[zerocool^]

Which imho is the problem with the court over the past 30 years or so. Court cases with far reaching implecations make it to the court, but they rule them very narrowly.

What my understanding of the Supreme Court's power is, is this: We expect to have the supreme court interpret the laws. We want to know what actions are covered or not covered by the laws in question. Instead, we get "in this one specific instance, the plantiff is correct, because the defense forgot to cross a T on page 3892 of their brief". What? We want you to rule on the LAW ITS SELF, not the specific case.

Ugh. Frustrating.

Re:Very narrow ruling

[Alsee]

Isn't that laundering, just applied to land instead of money?

I'm not certain I accurately understand what you mean by "laundering", but if you mean what I think you mean then the answer is No. An unconstitutional government purpose is unconstitutional and no amount of "laundering" or deception can remove that taint.

A government council may establish a variety of regulations reguarding school districts and student bussing. For example they may establish a regulation for saftey purposes that school districts and student bussing not cross railroad tracks. They may establish an arbtrary distance cap on bussing to minimize travel time. They may make arbitrary rules prohibiting bussing students across industrial or commercial zones. There is an endless rand of possible regulations with perfectly reasonable legitimate governmental purposes...

However... no amount of "laundering" and otherwise perfectly reasonable legitimate rules can legitimize rules that were selected and crafted for the purpose of racially segregating students. A supposedly saftey rule that busses not go through railroad crossings is unconstitutional if that legitimate purpose is a sham, is not constitutional if the intent was to keep black students on one side of the tracks out of white schools on the other side.

In this particular Eminent Domain case there does not appear to be any "laundering" going on. As far as I have seen... and as far as the Supreme Court has seen... it is a legitimate case of a government acting for a genuinely public purpose. If a government attempts to abuse Eminent Domain for the purpose of serving or enriching some favored private party, and that government tries to cloak that abuse in a sham of legitimacy, then the courts can and do look beyond that sham to strike it down.

I agree with your concern that such abuses can (and almost inevitably will) be attempted, and that leaves me with more than a little discomfort about the ruling. However I am ultimately forced to agree with the Supreme Court majority logic and their ruling, that they drew the correct line where it needed to be. Cases of this sort just need to be subject to close scrutiny and vigilance against abuse.

-

Re:Very narrow ruling

[ajs318]

Of course "obviety" is a word ..... being -ious means having -iety.

You'll be saying "breathed" instead of "brothe" next!

Re:Very narrow ruling

[jdavidb]

We have a law that allows patents to be challenged on obviousness, but unfortunately a law means nothing and we need a court decision.

It doesn't matter that the meaning of the law is obvious to anyone reading it, either.

Re:Very narrow ruling

[darkmeridian]

Nope. Bad patents are causing big business to complain.

Re:Very narrow ruling

[phamlen]

So as long as the local politicians don't actually say who they are going to give the property to, whether it be some wealthier individual or corporation, until 10 minutes after they take it from you, then it is all well and good as long as the deed is actually held by the town for a moment?

The issue is purpose, and the courts are pretty good at smacking down attempts to violate the Constitution by means of holding up a fraudulent and superfical mask of a permissable purpose.

So no, if a company lobbied the government to do them a favor of seizing some property to turn over to that company, then that seizure would be unconstitutional no matter what facade the government crafted to conseal that illegitimate purpose.

The complication is that this kind of corruption is awfully easy to conceal and very difficult to prove. In the real world, I think that rich interests could very well get specific property given to them if they were willing to pay enough money.

BUT... I agree that the SCOTUS decision is the right one and that issues of corruption and misuse of emminent domain are better handled through legislation at the local level . For example, you could pass a regulation that insists all emminent domain seizures must be approved first by a ballot measure getting at least 50% of the vote.

Or you could just trust your politicians to do the right thing...they're mostly honest, right?

Re:Very narrow ruling

[Fordiman]

He's a 'lawyer'. What do you expect?

Re:Very narrow ruling

[Anonymous Coward]

"includes"? Come on, who doesn't use "comprises"?

Re:Very narrow ruling

[ShinyBrowncoat]

Obviousness is very strictly constructed.

You mean this wouldn't work?

Your honor, the appellent is an idiot.
The appellent was able to create said invention despite being an idiot.
Ergo, the invention is obvious.

Re:Very narrow ruling

[benna]

That is really not true. You would think it is true, because the media only report important cases, but there are plenty of narrower decisions as well, and the Supreme Court has a tendency to make narrower ruling whenever possible.

Re:Very narrow ruling

[anagama]

It's not a quote so much as excerpt from a sentence. On its own it means nothing and is misleading. I initially thought that it was talking about how combining two pre-existing products wouldn't really be patentable. But using the "teaching-suggestion-motivation" test, the Federal courts have actually been ruling that such things are patentable. That is why it is appalling writing -- first, it doesn't say anything because it is a fragment, and secondly, it leaves the reader to fill in those details, prossibly erroneously. Here is the full paragraph containing the phrase. Note that it describes an evidentiary test used to evaluate whether something is obvious:

The Federal Circuit's "teaching-suggestion-motivation test" has been applied in hundreds of cases since 1985, including in the decision below. App. at 16a-17a. The Federal Circuit has repeatedly held that a "teaching or suggestion or motivation" to combine prior art references is an "essential evidentiary component" of any obviousness holding. C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1351- 52 (Fed. Cir. 1998). See also In re Dembiczak, 175 F.3d 994, 998 (Fed. Cir. 1999). The Federal Circuit applies this "teaching- suggestion-motivation test" even where, as in this case, a patent claims nothing more than a combination of pre- existing, off-the-shelf components in which each component performs exactly the same function that it had been known and was designed to perform.

Re:Very narrow ruling

[tsrich]

>>> I didn't RTFA, but...

You're posting on slashdot. It's redundant to say this.

Re:Very narrow ruling

[amper]

I have to say that while I understand your resoning here, I entirely disagree with your conclusions.

"Public use" means just that--public use. In the cited case, I believe it to be improper for any governmental agency to take private property for the purposes described. Whether or not "Party B" is "unknown" or "unspecified", the fact remains that the whole point was that the government took property with the intention of disposing of it in such a fashion as to enrich a private entity. This is not, in my opinion, a proper function of gevernment, nor is it in any waya proper method for any governmental agency to provide economic stimulus, that is to say, at the expense of another private entity. We already have mechanisms in place by which private property can be sold at true market value to other private entities interested in that property. We call these mechanisms "the real estate market".

If it is truly in the public interest to spur development in a particular area, a more proper way to handle the situation would be for the government to declare an "economic development zone" and provide suitable incentives for those who desire to develop that zone to purchase the property in question on the open market at the going market value.

Re:Very narrow ruling

[amper]

It a little more complicated than that. The only reason the concept of "judicial review" wasn't codified in the Constitution is that the Framers, in a rare case of a complete lack of foresight, felt that the concept was so obvious as to not require codification. The writings of the Framers at the time make this patently obvious. Marbury v. Madison didn't establish judicial review, per se, it merely formalized it as part of case law, much to the consternation of future legislators. Without judicial review, a primary check on the power of the legislature ceases to exist.

Now if only we could fix the misapplication of the "Commerce Clause", and make the SCOTUS understand that the Ninth and Tenth Amendments can't just be conveniently forgotten whenever they feel like it, we might have the makings of a modern society...

Re:Very narrow ruling

[Alsee]

Akk, this post got too long. Several parts need a solid trimming. To quote some famous writer or another, sorry but I didn't have the time to make it shorter. Hehe. Oh well.

"Public use" means just that--public use.

It is extremely easy and common to decide which way you think a case should go based on the immediate case at hand. In fact my initial reaction was exactly the same as yours. However in law - esecially in Constitutional law - you must rule upon the exact underlying legal mechanisms involved, and rulings must be based on a constistant application of legal reasoning. Applying a certain legal basis in one case to reach what seems like the "right" result can easily turn disasterous when consistancy requires you to apply the same rule of law in ALL cases. It can be especially problematical when you are reversing prior rule of law in order to reach the "right" result in teh current case, and you are faced with consistanly applying that reversal of law to all cases.

Have you read the actual ruling, and the several precedents cited demonstrating "public purpose" as falling under "public use"? If you want to exclude "public purpose" from "public use" then you must be aware that you are actually reversing the standing understanding of the Constitution, and that you are erecting a bar to prohibit the IMO) very legitimate and important examples cited in the ruling.

If you don't feel like digging through the ruling itself, at least read the bottom half of my post over here where I describe the Hawaii Eminent Domain example. An example which would be barred as unconstitutionall under your more narrow interpretation. In order to interpret the Consitituion as barring the current case, you are interpreting the consitition in a way that would bar the Hawaii example.

Whether or not "Party B" is "unknown" or "unspecified"

I'm not sure if I was clear enough on the signifigance of that point... or maybe I'm just being redundant here... if if redundant I appologize...

but the reason I see that point as signifigant is that it rules out the (clearly unconstitutional) concern that the government might have been acting for the purpose of enriching a private entity. The government's purpose and intent here truely was public in nature.

enrich a private entity

You are not enriching a buyer if the land is put for competitive sale on the market. A company can already buy an office site at market value in New Jeresy or Pennsylvania or anywhere else. Buyers are not meaningfully encriched merely by having one additional location up for sale on the market.

There really isn't any enrichment issue here.

expense of another private entity

I agree that a signifigant inconvienence is put upon the affected entity - that is inherent in of any application of Eminent Domain. However the Constitution requires that Eminent Domain may only be an abrigment of choice (an abridgment of the choice not to sell on the market), that it may not be a taking of value from one party to any other or from one party to the government.

An intrusion, yes. A singifigant inconvience, yes. An abrigment of market choice, yes. All inherent in any case of Eminent Domain. But this case was not an enrichment of one at the expence of another. It was not government coercion to transfer of wealth.

declare an "economic development zone" and provide suitable incentives for those who desire to develop that zone to purchase the property in question on the open market at the going market value.

Your suggestion, while far more attractive than using Eminent Domain, is unfortuantly unworkable. You wind up with a swiss-cheese of unusable land. You have individual owners hoping to strike it rich by obstucting devlopment and running up prices far enough to kill any project, and you end up with stubborn owners refusing to sell and creating swiss cheese holes killing the project

Re:Very narrow ruling

[Spunk]

Very well said!

Re:Very narrow ruling

[mrchaotica]

Thank you! I just hope the person I was responding to (and others like him) felt the same way.

Goddman it

[Gleenie]

I've already patented the use of obvious patents. Does that mean that my fellow cynics can have my patent struck down in an ironic twist of fate?

Re:Goddman it

[x2A]

Well I, more cleverly (therefore less obviously), patented unobvious patents, which means that all patents must pay royalties to me, or else be struck down in an moronic twist of fate :-p

Re:Goddman it

[plover]

I've already patented the use of obvious patents.

Thomas Edison beat you to this a hundred years ago.

The story I heard was that he was arguing before the court that some invention was not obvious. He placed a raw egg on the bench in front of the judges, and challenged the judges to make it stand on its pointy end. They tried balancing it, shaking it to break up the yolk, spinning it, and finally declared the task impossible. Mr. Edison took the egg and crushed the pointy end of the eggshell down on the bench, where he easily stood it on its end. One of the judges said "well, that's obvious." Mr. Edison pointed out that, not thirty seconds prior, they had declared the task impossible but now it's obvious. And that's why his patent should stand.

Of course now that I've typed it up, I can find no reference to the story. Typical me. :-( Can someone help me out?

Re:Goddman it

[Bostik]

Of course now that I've typed it up, I can find no reference to the story.

No wonder. You mixed the person. That story is usually associated with Columbus. Hell, there's even a Wikipedia entry of the thing.

You would need a Reader's Digest anecdote to find something older :)

Re:Goddman it

[AusIV]

Yes, but just because a judge can't figure out how to make thumbnails on a web page that you can click to see a bigger picture doesn't mean it's not an obvious patent. I think it's hard to say what is an isn't an obvious patent. It would need some kind of definition to hold up consistently.

Re:Goddman it

[Digital Vomit]

Someone has already posted that it was Columbus and not Edison who did this trick, but, used as an argument for the non-obviousness of certain patents, this example is terrible. A more modern variant might be to challenge people to come up with a better compression algorithm, then you presenting your "better" compression algorithm by smashing the HDD flat with a sledgehammer. Outside-the-box thinking!

It's a clever trick that belongs in a Mind Trap game; nothing more. If Edison really had used that egg trick as a patent defense, he would've been a complete asshat for doing so (although, from what I've heard of him, he was a complete asshat nonetheless).

Re:Goddman it

[Tablizer]

Mr. Edison took the egg and crushed the pointy end of the eggshell down on the bench, where he easily stood it on its end.

My toddler once did that to an entire carton of eggs. Does that make him smarter than the judges? (Although it wasn't quite the tip, but about half the egg.)

Re:Goddman it

[Quirk]

The earliest historical rendition of the anecdote I'm familiar with deals withChristopher Columbus. Columbus asked his detractors to stand a hardboiled egg on end, when they failed he cracked the base of the egg and pointed out that all problems seem intractable until a solution is provided.

The Columbus' anecdote seems to be true but I'm sure somewhere in the dark, dusty toe-stubbing recesses of my memory there is another anecdote of the same content dating back to Roman times. Standing an egg on end was said to be possible only on "the vernal and autumnal equinox, when the sun crosses the equator, making night and day equal on all parts of the earth."

Re:Goddman it

[mlush]

For some reason that story puts me in mind of the current issue of The Order of the Stick

Re:Goddman it

[kozumik]

What a silly example. The test relies on trickery and a deliberate misunderstanding of the rules is all. The only thing invented was a good con job.

Re:Goddman it

[Captain_Chaos]

That story is usually associated with Columbus

In Dutch that's even an expression: "het ei van Columbus" ("Columbus' egg"), meaning a simple solution to a problem which is very obvious in hindsight.

Re:Goddman it

[houghi]

So instead of declining the patent for being obvious, they could decline it for previous-art.

Re:Goddman it

[Reverend528]

I don't get it. He was trying to patent the egg?

Re:Goddman it

[a_n_d_e_r_s]

A simple solution to an hard problem has been done before Columbus.

The gordian knot was solved by Alexander the Great:

"In 333 BC, wintering at Gordium, Alexander attempted to untie the knot. When he could find no end to the knot, to unbind it, he sliced it in half with a stroke of his sword, producing the required ends (the so-called "Alexandrian solution"). Some traditions dispute this, and say that he pulled the knot out of its pole pin, rather than cutting it. Either way, Alexander did go on to conquer Asia."

http://en.wikipedia.org/wiki/Gordian_knot

Re:Goddman it

[acroyear]

My first impression was the Chewbacca test was being applied...

Re:Goddman it

[crawling_chaos]

If Edison really had used that egg trick as a patent defense, he would've been a complete asshat for doing so (although, from what I've heard of him, he was a complete asshat nonetheless).

True, but it seems some asshatishness is often necessary to get things done. I can think of Edison, Marconi, both Roosevelts, and in more modern times both Bill Gates and Richard Stallman as individuals who can be extraordinarily difficult to deal with.

Re:Goddman it

[GigsVT]

it seems some asshatishness is often necessary to get things done

New sig!

Re:Goddman it

[Anonymous Coward]

God, I hope you meant ironic.

Re:Goddman it

[Jerim]

I agree with the judges regardless of who the person actually was. Patents should not protect con-artists. What keeps the person from marketing their amazing "Egg that can stand on it's head" to millions of young kids? It would be a total rip-off of the consumer. The same as me selling a plant that talks, as long as you go buy a talking parrott and put it on top of the plant.

The person in the story seems more like a jester or a street performer, with his riddles. It is comical, but not patenable. Can I patent newspapers because no one can guess what is "black and white and read all over."? Just because the judges weren't able to answer the riddle off the top of their head, doesn't mean it wasn't obvious. Breaking the egg takes no special talent and didn't involve any research or deep thought. Can I patent a method for fixing your car by selling it and buying another? Viola, it is fixed!!

Patents should encourage true academic research and scientific experiments. Not someone's ability to trick others.

Re:Goddman it

[Anonymous Coward]

If true it simply illustrates that the opposition had lousy lawyers. It would be rediculous to allow a judge to attempt such an egg-standing maneuver as a proof when it is clear judges are not skilled in the art of egg-standing.

Re:Goddman it

[woodworker88]

I believe the smashing the egg is attributed to Filippo Brunelleschi, a Florentine architect (1377-1446), when he was trying to obtain the commission to design the dome of the Duomo (cathedral in Florence). He smashed the egg to demonstrate to the judges his particular method of dome construction. I believe the obvious part of (attributed to Edison) was also repeated in a 1950's television interview by Walter Chronkite (interview by Chronkite, not smashing of the egg).

Re:Goddman it

[DarkVader]

No, it makes a judge that can't see through the farce very, very stupid.

You see, by crushing the pointy end, you haven't met the challenge of making the egg stand on the pointy end - as the egg no longer has one, it can't stand on it.

The actual (and obvious) solution is to simply drop the egg into a carton.

Re:Goddman it

[a2d2wishmaster]

Actually its a bullshit story but good example of why obvious patents get published. A panel of judges may of seen the task impossible, or assumed not breaking the egg was part of the goal. If they had brought in a dozen problem solvers and asked the same question it would of had been more valid.

Re:Goddman it

[Reverend528]

It would need some kind of definition to hold up consistently.

How about this: if someone accidentally infringes on a patent then it should be declared obvious. This would eliminate most obvious patents, make submarine patents extremely hard to enforce, and make sure that inventors/developers wouldn't have to constantly look up every trivial thing they think of to make sure they don't owe royalties.

"Not surprisingly"

[Frosty Piss]

Interestingly, several major IT firms are supporting the defense."

I guess it is "interesting", but I think I would have said "Not surprisingly". Big name IT stands to lose a lot if the patenting of "obvious" ideas is struck down.

Re:"Not surprisingly"

[plasmacutter]

huh?

theyre comming in on the side of the defense.. which is being attacked by plaintiffs who have obvious patents..

Oo.. I believe you misinterpreted?

Re:"Not surprisingly"

[Anonymous Coward]

Surprise! You're wrong! The IT firms are against patenting of "obvious" ideas.

Re:"Not surprisingly"

[Daneboy]

No, actually he's right and you're mistaken. It's clear both from TFA and from the posted summary that (a) the DEFENSE is saying that obvious patents should be thrown out, and (b) some big IT firms including Cisco are supporting the DEFENSE in this case.

This isn't really all that surprising, if you think about it. I mean, products like Cisco routers or Microsoft Windows do have a huge number of really obvious features -- And I'm sure the savings would be considerable if they didn't have to hire an army of lawyers to check if every single feature was unpatented (thus freeing up said lawyers to pursue anti-piracy litigation against their users...)

Re:"Not surprisingly"

[Anonymous Coward]

More properly, defendant KSR won judgement at the lower court; Teleflex appealed and won reversal; KSR petitioned SCOTUS and was granted cert. Therefore the article summary is completely misleading if not legally illiterate: it should read that "several major IT firms have jointly filed an amicus brief in support of petitioner KSR's position that the Federal Circuit has been improperly applying the 'non-obviousness' test of the 1952 Patent Act by developing a 'suggestion test' that departs from the statutory mandate that the test be applied from the perspective of a person having ordinary skill in the art (see ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572 (Fed.Cir. 1984))."

About damned time this made it to the Supremes. Let's see if "strict constructionism" wins the day.

-WatchfulBabbler

Re:"Not surprisingly"

[zippthorne]

How is being against patenting the obvious different from supporting the entity arguing for not patenting the obvious?

Re:"Not surprisingly"

[bradkittenbrink]

HOLY SHIT! Someone correctly parsed both the article summary and the post they were replying to! This is a red letter day for slashdot.

Re:"Not surprisingly"

[Anonymous Coward]

The difference between being against patenting the obvious and supporting the entity arguing for not patenting the obvious is patently obvious for all to see, and therefore should not have been patented in the first place.

Unsurprising.

[porkchop_d_clown]

No single company can afford to get off the patent treadmill because they would be vulnerable to attack - but anything that forced the entire industry to "disarm" would be a win for them all.

Re:Unsurprising.

[ween14]

I disagree with that. In fact the large companies stand to lose a lot if obvious patents are struck down.

It is very similar to the arms race, with the introduction of nukes all of the power was put in the hands of very few countries. No smaller country could compete because they couldn't make their own nukes. With patents, small companies can't compete because they can't reach massive cross licensing, aka cold war, style agreements with the large companies because they don't have thousands of patents.

Re:Unsurprising.

[at_slashdot]

"but anything that forced the entire industry to "disarm" would be a win for them all." ...and a huge loss for lawyers. Just think about it they need to eat too.

Re:Unsurprising.

[1ucius]

I think you are misreading the patent-market. . . Big IT is the victim of crappy patents. Who to you think the patent trolls go after? It's not the one man IT shop with $450 in its bank account. It's Microsoft with $40 billion in cash.

Re:Unsurprising.

[x2A]

"they need to eat too"

You've obviously never properly got to know any lawyers. They only pretend to eat so we believe they're human ;-)

Re:Unsurprising.

[pyros]

In fact the large companies stand to lose a lot if obvious patents are struck down.

I'm guessing Microsoft would have preferred that the USPTO declined the Eolas patent for broswer plugins, since that petant cost Microsoft ~0.5 billion dollars. Large companies will lose a number of patents, but so will the IP companies who use the sue-rich-companies-for-infringing-absurdly-broad-a nd-obvious-patents business plan. So it evens out with the effect that all companies, large and small, don't have to worry about how many clicks it takes a customer to buy something from their web site.

Re:Unsurprising.

[grilled-cheese]

Is anyone else seeing a similarity between the patent treadmil and nuclear war? If a company is to survive, they mist patent grab as much as possible, thus blocking innovation. And since everyone is doing it, it compounds the problem. The only viable solution is for total patent disarmement to open up research, trade, and commerce of items.

Re:Unsurprising.

[Arker]

I think you are misreading the patent-market. . . Big IT is the victim of crappy patents. Who to you think the patent trolls go after? It's not the one man IT shop with $450 in its bank account. It's Microsoft with $40 billion in cash.

Actually, both get smacked on occasion. But clearly, the deep pockets are the obvious target for the patent trolls. The smaller guys mostly get hit when they're competing with someone else... like the guy that makes free software to control model trains. His proprietary competitor apparently lurked on his mailing list awhile, then ran off to patent a bunch of stuff discussed there, then sent a cease-and-desist order. I have a feeling we'll be seeing a lot more of that in the future too.

Re:Unsurprising.

[Anonymous Coward]

Assholes like that should be beaten with a stick that does not follow the rule of the thumb. And be thrown to jackals afterwards.

Re:Unsurprising.

[Anonymous Coward]

Actually, it is both.

It is common for patent trolls to look for smaller companies and go after them first. Since most small companies cannot afford litigation, they settle and license. If it does go to court, and they get a favorable ruling, that then sets precedent for use in going after larger companies.

Re:Unsurprising.

[sadtrev]

Big IT is the victim of crappy patents.

Yes indeed. From the petition :
Microsoft has been sued for allegedly infringing dozens of questionable patents in the software field. The lack of access to software prior art, the inability to find the prior art that does exist, and the limited resources of the Patent Office, make searching by the Patent Office particularly ineffective. Given the difficulty inherent in finding software prior art, proving a software patent invalid by clear and convincing evidence, especially if a motivation to combine element is also required, is exceedingly difficult.
What goes around, comes around. Maybe this means that they won't be using patents to challenge free software. If they were intending to do that they might be expected to have done it by now.

Re:Unsurprising.

[TCM]

like the guy that makes free software to control model trains. His proprietary competitor apparently lurked on his mailing list awhile, then ran off to patent a bunch of stuff discussed there, then sent a cease-and-desist order.

How can this possibly work? If that's not prior art, then what is?

Re:Unsurprising.

[acroyear]

The point being that the guy making the free software can't afford the defense. Yeah its "obvious" he's in the right and has the prior art (theoretically in the form of the mailing list archives), but he's still got to hire the lawyer and (being a civil suit) deal with at least 2 rounds of appeals.

For someone making something that makes no money, shelling out $100,000 in legal fees to protect it doesn't seem all that smart.

(consider THAT, Mr. Gates... ;-) ).

Re:Unsurprising.

[tiocsti]

Although, one could argue that microsofts entire patent portfolio is ibm's fault. Yeah, that's right, the linux poster child. There was a time when microsoft's patent portfolio was around 0, but ibm forced them to reevaluate that strategy, and get into the defensive patent game.

Re:Unsurprising.

[DoctorPepper]

Actually they do eat. I've seen them. They slither around on the floor a restaurants and pick up droppings. You know how those bottom-feeders are.

-----------------
Q: What's the difference between a catfish and a lawyer?
A: One's a scum-sucking bottom-feeder, the other one's a fish

Re:Unsurprising.

[Pendersempai]

Actually, both get smacked on occasion.

I challenge you to name even one case where a very small company with very few assets has been sued by a patent troll. It doesn't happen; it's not worth the cost of litigation.

Re:Unsurprising.

[jedidiah]

IBM patents a lot of stuff.

Software is just the tip of the iceberg.

IBM patents include things like improvements to physical storage technology. They do basic research like manipulating individual atoms.

In this regard, IBM is nothing like Microsoft.

Re:Unsurprising.

[Anonymous Coward]

Prior art needs to be published. It is certainly debatable whether a mailing list with maybe 50 subscribers counts, even if the list has a web-accessible archive.

Re:Unsurprising.

[Alsee]

shelling out $100,000 in legal fees

That figure is WAY on the low side, chuckle. Try two million dollars.

Note that that is two million dollars for each side, four million total, not one million each. Google has many links documenting that figure. The original source appears to be an American Intellectual Property Lawyers Association 2003 economic survey report.

-

Re:Unsurprising.

[Maxo-Texas]

But now with patent IP companies,

You have the case of a small group that has a few nukes (patents) but no country (company & product) to strike back at.

They don't play by the rules- they just want the money.

Re:Unsurprising.

[Anonymous Coward]

Small companies don't get sued by trolls, they get sued by big companies with obvious patents.

Re:Unsurprising.

[greenrd]

There was a time when microsoft's patent portfolio was around 0

Either this was a case of gross incompetence, or this provides an interesting counterexample to the idea that businesses must robotically follow whatever legal course of action is likely to result in the most profits, no matter how unethical.

Re:Unsurprising.

[Anonymous Coward]

Actually, both get smacked on occasion. But clearly, the deep pockets are the obvious target for the patent trolls.

If I was a patent troll, I would go after small companies first. This way if/when I win a lawsuit I have a previous case history to point to. Once this is done enough...._then_ you go after the big dogs. --stj

Clogged Dockets

[adageable]

Certainly, someone needs to reign in the patents, but won't this lead to just more and more litigation? The real problem, it seems, is that too many patents are being issued! I suppose this helps rescind them, but could lead to a clogged docket, IMHO.

Re:Clogged Dockets

[x2A]

Yeah but if you're confident that a patent is obvious enough, means you can just go ahead and use it anyway, knowing that any litigation that comes your way is only ever gonna get as far as the supreme court (jk)

Re:Clogged Dockets

[adageable]

Hmm. Tell that to someone like RIM who has spent a great amount of time (and $) defending themselves from patent litigation where most of the patent claims have been invalidated. Another concern is pure patent warefare by companies doing nothing more than buying up ideas and sitting on them. I'm no expert in patent litigation (shouldn't more people say this, really?), but I'm concerned about approaches to patents that involve litigation after the fact. This seems to map to the classic IT scenario where fixing bugs early in the development cycle leads to lowered development costs by orders of magnitude. It just seems to me that focusing on mitigating the effects of trivial patents already issued dimishes a focus on stopping the problem in the first place. The only people that profit under patent warfare, where a bad patent has already been issued, are the lawyers arguing the details. Just my humble opinion.

Ordinary Skill?

[CodeBuster]

It was my understanding that United States patent law contains a provision covering the patentability of devices, ideas, methods, or techniques from any body of knowledge that would be generally known to a skilled practitioner of the trade or art in question (i.e. the so called "skilled practitioner" test for obvious patents or prior art). If it is patently obvious then in effect it cannot be patented.

Person having ordinary skill in the art

Re:Ordinary Skill?

[RowboatRobot]

While that is true, the real concern here (as it is in any court case) is how the law is interpreted. By some recent actions of the patent office (especially in the biomedical industry) you'd think obvious clauses were non-existant, yet there are other fields (basic mechanics, for example) in which the patent office has been much more stringent. I'm not sure that in this case the supreme court has the power to do anything. Honestly, what power does it have to make sure the patent office enforces patents the way it sees fit? Have a judge breathing over every patent clerk's shoulder? Even if they overhaul and re-structure the entire department, the issue here is the need for a defined policy for each and every field, which is clearly not going to be laid out by the supreme court alone. Perhaps they could elect a committee to create better patent policy. (Surely more bureaucracy will fix this!)

Re:Ordinary Skill?

[kozumik]

> While that is true, the real concern here (as it is in any court case) is how the law is interpreted.

Right. I think this is less about a legal principle or fine point, and more about establishing guidelines for a more capable patent office which is better capable of determining the not always obvious enough.

In cutting edge fields like Biotech there are probably patent officers who award patents when in doubt, which makes sense due to their high value and possibility for appeal later, but still allows the possibility of frivilous patents and must bog down the courts and place a great burden on the industry.

Re:Ordinary Skill?

[SuperMog2002]

I guess an example of this would be if, say, I came up with a new object-oriented implementation of bubble sort. Instead of swapping items inline, I would construct an instance of class Swapper. Swapper's constructor would take two Object parameters, and would have methods RetrieveFirst() that would return the second Object passed in and RetrieveSecond() that would return the first Object passed in (effectively swapping them). I then proceed to get a patent on this.

To a judge whos education is strictly law (and thus has no idea what the heck these object things are), being able to swap any two of them no matter what they are could very well sound ingenious. Polymorphism isn't exactly a concept you can really grasp without getting your hands dirty writing some code, and of course, I would go out of my way in writing this patent to explain polymorphism in a very confusing yet seemingly intellegent way (i.e. I sound smart but am over the judge's head). To this judge, my technique might sound brilliant.

However, the average Slashdotter should be able to immediately see that this is anything but briliant. I imagine most of us have done some hardcore object oriented design work before where you use object's to accomplish EVERYTHING. In that kind of work, the bubble sort iteself would be an object, the compare used to determine if two objects need to be sorted would be an object, and of course, the swap itself would be an object. Hello, that's fairly obvious in an object-oriented design mindset. (It can also be easily argued that using a constructed object to swap two objects is a retarded implementation, but I digress). Thus, to someone who is not a "skilled practitioner" in computer science/software engineering, this may sound like a non-obvious idea, but to an experienced computer scientist/software engineer, this is very obvious. A "skilled practitioner" thus would find it obvious, and the patent should be thrown out.

Re:Ordinary Skill?

[Mikkeles]

'.... Have a judge breathing over every patent clerk's shoulder? ....'

No, have the Patent Office cover the court costs of a successful obviousness challenger.

Precent

[EmbeddedJanitor]

While the ruling is likely to be narrowly confined, it will establish a current precedent for the interpretation of "obvious". This could have significant implications for future rulings.

Generally, most recent patent attacks have been prior-art based. This potentially provides a new line of attack.

My prediction...

[kcbrown]

The Supreme Court will rule in such a way that the ruling does absolutely nothing to help with the mess that is now patents. They will claim that it's a problem for Congress.

There's precedent for this, namely the Eldred case, in which they basically ruled against Eldred on the same basis.

You can't count on the Supreme Court to rule well (that is, on the side of the People) on anything anymore.

Sigh.

Re:My prediction...

[Tablizer]

The Supreme Court will rule in such a way that the ruling does absolutely nothing to help with the mess that is now patents. They will claim that it's a problem for Congress.

It's the courts job to interpret existing laws. The "common practitioner" clause is Congress's own law in writing. I cannot see how they can turn that back on congress, unless perhaps it conflicts with something else Congress enacted (which happens all the time).

Re:My prediction...

[Anonymous Coward]

I'm beginning to understand why people hate lawyers.

Re:My prediction...

[Nimey]

The SC apparently agrees that we can't have wingnuts screaming about activist judges.

I'll be blunt here...

[Firehed]

About fucking time.

(well, unless "obvious" patents are allowed...)

Where's APPLE

[Anonymous Coward]

Such an interpretation, KSR argued, isn't consistent with a provision of federal patent law that dates to 1952, which stipulates that an invention is not eligible for a patent if a "person having ordinary skill in the art" would consider it "obvious."

I consider the Click Wheel to be an "obvious" creation, and for the record, IAAEE. Does that mean that the deep pocketed albino will lose its patents any time soon?

Re:Where's APPLE

[Anonymous Coward]

Blame their lawyers, I reckon - they've probably been advised to steer clear of this case to avoid prejudicing their own cases (defensive and offensive) against Creative.

Finally I can think about releasing my software

[dino213b]

Some reform is desparately needed; I suppose this is as good of a start as any. Software patents can severely diminish small companies and individuals from releasing software without fear and making some money out of it.

Imagine someone taking a patent out on a device that by means of a spring and plastic somehow disables and enables a machine by use of what is coined in the patent declaration as a "power" switch.

Talk about absurd! A similar analogy can be drawn from some software patents and as much as I hate to defend the borg, some of the recent Microsoft court loses seemed absurd at first look. Common procedures done in "office" software. Can someone really patent part of a document-database-exchange? See http://yro.slashdot.org/article.pl?sid=06/06/17/06 38233&from=rss

#ifdef angry
#include <standard_i_am_opinionated_and_ignorant_too_discla imer.h>
#endif

Catfish

[Anonymous Coward]

and a huge loss for lawyers. Just think about it they need to eat too.

There will never be a shortage of forage for the bottomfeeders.

Amazon's 1-click buy

[punkguitarist]

Personally I think they should all together be abolished, but this is a good start - people are finally realising how stupid some of them are. Amazon.com has the "1-click buy" patent... now every other company must sell things in a two-click buy or greater. This is an example of an obvious patent, which should be abolished (amazon also holds a couple more like this).

Re:Amazon's 1-click buy

[ClamIAm]

Amazon did sue Barnes and Noble. But hang on, even the FSF ended their boycott of Amazon. It seems they haven't gone after anyone else.

Re:Amazon's 1-click buy

[punkguitarist]

I didn't know that, but I'm happy that they too must have realised how outragous this patent is. If they're no longer sueing over it, why have it? "Amazon has got a number of other menacing patents since then, but has not as yet used them for aggression" This statement means that they are still obtaining patents, but not showing aggression towards any infringers of the patent? If I am correct in assuming so, then it is useless to them, and goes straight back to our argument of getting rid of these kinds of patents. Maybe there are extremily innovative things that require patents (though I'm not convinced), but things like this, certainly do not fit into that catagory.

Re:Amazon's 1-click buy

[jnf]

This basically means, 'dont piss us off because we have the patent, but so long as you are not terribly important to us we will remain indifferent'. It's not useless to them, its future ammo.

Re:Amazon's 1-click buy

[bky1701]

And about as good as ammo as those "ex-soviet" (made in china) nukes you buy in one click on Amazon!

Re:Amazon's 1-click buy

[Jzor]

IMO, the '1-click buy' is at best trademark-able and not even close to patentable. That thing should have been stuffed back in Amazon's mouth. (And besides, if you don't store cookies between sessions it takes like 3-4 clicks to buy.)

It makes sense to trademark it atleast because then they could be the only ones to call it '1-click buy' but someone else could come with their 'Uber-low-click super duper buymagigger buttontron!' and we wouldn't have to deal with this retardedly obvious patent crap.

Waste of time

[rucs_hack]

If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.

We are talking money here, lots and lots of money. There is no way that IT companies will roll over and stop patenting crap.

It costs less to get a patent then can be made from hijacking some succesful yet unsuspecting developer several years later (especially if they just roll over and settle). So what if some don't make it through? They'll just turn around and try again after some patent lawyer has worked his expensive magic on it.

Re:Waste of time

[DanTheLewis]

The rule is obvious to a skilled practitioner, not obvious to a patent examiner.

Re:Waste of time

[rucs_hack]

Then it seems that rule hasn't been applied well in the past when it comes to IT.

Frankly it seems to me that the only requirement for an american IT patant is that no-one else has patented it already, not non-obviousness. Microsoft managed to patent double clicking, didn't they, that's nuts.

http://www.newscientist.com/article.ns?id=dn5072

To me that seems as absurd as patanting pressing a key on a keyboard twice.

Now the mouse itself, that was an amazing invention, but patenting ways to use it's button/s seems stupid.

Proper expert examination would surely stop the mass of overlapping patents that exist in the IT world too.

Re:Waste of time

[DanTheLewis]

That's the sue-ee's argument all right, that the obviousness rule has not been applied well.

It's hard to say that this one thing would just fix the problem, though. Applying the obviousness test fairly means that the invention has to be pretty explicitly anticipated in the technical literature prior to the patent filing; this eliminates arbitrary guesswork where the court sees a discovery and says "but that's so obvious now that I see how it works." It's unfair to the inventor that actually comes up with a great, should-have-been-obvious idea that no one actually thought of. The article talks about this.

The paradox is that for something to fail the obviousness test, it has to be mentioned in the technical literature, but the technical literature, with the possible exception of textbooks, is geared toward specialization and originality, not the things experts find generic and obvious. And patenting is happening on the bleeding edge of technology, where standard textbooks haven't been written yet. So I don't think this is going to be the common-sense, but difficult-to-apply "I know it when I see it" ruling that will entirely eliminate goofy business-method patents like One-Click.

But these guys with the gas pedal patent would probably be out of luck.

Re:Waste of time

[Anonymous Coward]

We are talking money here, lots and lots of money. There is no way that IT companies will roll over and stop patenting crap.

Of course there is. Fight money with money. Crap patents should be fined.

Re:Waste of time

[cpt kangarooski]

If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.

They're not allowed now, they're just getting through.

And more detail doesn't make it nonobvious. The canonical example of a nonobvious patent is one for a doorknob where the material of the knob is different for no particular reason, e.g. instead of being metal, it's wood. Specifying which wood, and how the wood is selected, etc. doesn't cure the flaw in the application.

Re:Waste of time

[Reverend528]

If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.

Well, at least the patents wouldn't be overly-broad like the ones the patent office sells now.

Re:Waste of time

[Lijemo]

If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious. We are talking money here, lots and lots of money. There is no way that IT companies will roll over and stop patenting crap.

Most companies churning out patents are not patent trolls. Rather, they are acting defensively to avoid getting burned by patent trolls. They are not making money from the patent itself, or trying to-- they are just trying to prevent someone from derailing their business by instigating bogus patent-infringement suits.

IT companies would LOVE it if the bar on what was patentable was higher.

It's true that a higher bar doesn't make patent trolling impossible-- but it makes it harder, and slows it down. Thus it becomes less profitable, so fewer people / companies / divisions bother with it, and go back to sending Nigeria e-mails. This benefits everyone: IT companies (big and small), the patent office (which is less swamped), innovation in general.

lawyers

[Anonymous Coward]

Lawyers aren't born, they're extruded.

RTFA Very Carefully, It's poorly worded

[Anonymous Coward]

KSR was accused of patent infringement on an obvious patent by Teleflex for pedals.

The appeals court ruled that the Teleflex patent stands because even a combination of off the shelf parts used in a novel way is nonobvious.

KSR Disagrees and is appealing to SCOTUS.

Cisco and Microsoft are coming in on the side of KSR, they believe "off the shelf in a novel way" is too low of a standard for patents.

Assuming they make a ruling and don't shove it off to the Congress, a ruling for KSR will have a wide ranging positive impact. Microsoft and Cisco will not have to spend as much patenting the obvious, and dealing with patent litigation, which costs a lot. Additionally it might free up resources for the Patent Office, perhaps allowing them a more thorough interpretation of those that do go to the office. Of course the patent office may not like this, it might decrease the yearly fees they take from prospective patenters.

Re:RTFA Very Carefully, It's poorly worded

[norton_I]

I believe (without much in the way of of evidence to back this up) that the costs of running the patent office are greater than the application fees -- therefore might be to their financial advantage to have fewer applications. Given the current backlog, any reduction in applications will take 5-10 years to show up in reduced personel, so likely would not require firing people, but merely not replacing examiners who retire or quit over that time frame.

It really is disgraceful the way the patent office is forced to operate -- they are given too little time to examine patents, the cost of rejecting them is even more time that they don't have, and they are unable to turn applications around in a timely fashion. I don't know how to calculate the cost to our economy of this, but I suspect it is high.

Re:RTFA Very Carefully, It's poorly worded

[Alsee]

I believe (without much in the way of of evidence to back this up) that the costs of running the patent office are greater than the application fees... It really is disgraceful the way the patent office is forced to operate

Actually you have it backwards, and it's even more disgraceful then you thought.

The patent office is run as a patent mill with minimal review and minimal expenditures. The applications fees are not being used to fully review (and reject) applications. The fees are being diverted to fund congress's pork projects.

Patent clerks are expected to clear a certain quota of cases each week (either final approval or final rejection). Each time the patent clerk finds a problem and sends the application back to the applicant and the application is "fixed" and resubmitted... it effectively counts as a penalty against the reviewer. So long as the applicant persists in resubmitting "corrections", the patent clerk is prevented from clearing the case and moving on. The patent clerk is continually penalized for repeatedly rejecting the same invalid application.

-

Gas Pedals?

[n6kuy]

So... What was that bit about "gas pedal technology"?

This isn't really about gas pedals on vehicles is it?

Re:Gas Pedals?

[Meowing]

Yes, it's really about gas pedals, specifically adjustable-height gas pedals with electrical interfaces (no throttle cable). Go figure!

One sort of interesting tangent is that the gas pedal itself wasn't always an obvious idea. Put a hapless n00b into a Model T and watch the poor victim try to figure out how to make it move.

Amazon sob sob

[the100rabh]

Hey man what will happen to one-click-purchase patent of Amazon. First of all u give these silly patents and then u have supreme court seems very useless and rusted system

Obvious

[lspd]

The petition for writ of certiorari is an interesting read. From the description at news.com.com.com.com you'd get the impression that this is a clear case of the Federal Circuit court not applying clear standards that the SCOTUS has already laid out, but the petition makes it clear that the Federal Circuit believes the SCOTUS's previous decisions create an unworkable framework for deciding "obviousness".

The SCOTUS basicly assumes that an invention is obvious when it is an aggregation of preexisting inventions. The holder of such a patent needs to demonstrate that the combination was unforseen or that it creates synergies beyond what would be expected. The Federal Circuit says that this goes against the concept of presuming that issued patents are valid. Every invention is obvious once it is disclosed, so the only way to shift the burden of proof off of the patent holder is to require that the infringer demonstrate clear evidence that the combination was suggested in technical literature prior to the patent issuing. The SCOTUS assumes that a "person having ordinary skill in the art" is capable of solving problems through novel combinations of existing technology. The Federal Circuit assumes that a "person having ordinary skill in the art" isn't capable of creative problem solving.

Neither one of these standards does justice to the concept of "obvious". It would be nice to see the SCOTUS create a workable framework for deciding obviousness rather than simply reiterating its previous decisions.

Re:Obvious

[mavenguy]

Disclaimer: IANAL but I am a former patent examiner.

After reading through a night's worth of comments I think your post most accurately states the principle of patent law that, hopefully, will be given a clear set of guidelines and that these guidelines will result in scaling back what have become, over the many years of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals holdings on interpreting non-obviousness.

The reason this is critical is that, beyond the obvious effect in being able to strike down issued patents only after lengthy and costly litigation it would enable the PTO to issue narrower claims, or even refuse issue of any claims in the first place. The current CAFC case law has put a too high burden on time-constrained examiners to make good cases against with prior art references that are readily available. Thus, if a reference doesn't explicitly babble about all the kinds of things the stuff it discloses could be used for the applicant will scream that it doesn't "suggest" the use described in the claims at issue. The examiner is then stuck with searching more for a better "golden bullet" reference (Hell, you might just find an anticipating reference that knocks out the claim with no sticky obviousness issues) or finding yet another "glue" reference which will risk complicating the rejection, giving applicant more room to attack the rejection.

Doing this routinely, however, will take up time, and the examiners must meet their production quotas or else they will be fired, so it's either to throw in the towel and allow the claim (a very easy thing to do with little time consumption) or if the applicant appeals, to write an examiner's answer on appeal and ship the case off to the PTO's Board of Appeals (which takes a lot more work, not to mention that after the appeal is decided with anything reversed, the examiner must issue the application yet gets no more time to handle this work)

This is why this appeal has the great potential, if the opinion issued by the SCOTUS is clear and in the right direction, of scaling back some of the high barriers erected by the CAFC. On the other hand, if they, in essence, affirm this CAFC case law then we are stuck with the current situation in which case only Congress can change it, the possible results thereof I shudder to even contemplate.

Re:Obvious

[tjeffer]

You are basically arguing that the SCOTUS should lower the bar on obviousness to make the Examiner's job easier. Not a particularily strong argument, IMHO.

Re:Obvious

[Anonymous Coward]

The SCOTUS assumes that a "person having ordinary skill in the art" is capable of solving problems through novel combinations of existing technology

actually, this is incorrect. graham v deere layed out the four points necessary to determine an obvious combination, one of which is stated (or very well-known in the art) 'motivation' to combine the teachings. that is, there must be a suggestion in the art of record to add feature B to invention A. that doesn't sound too much like POSITA is seen as being capable of solving too many problems through novel combinations.

Re:Obvious

[mavenguy]

That's a fair point to make, since, ideally, the law should set a standard from the point of view that considers only the respective positions of the patentee and everyone else (potential accused infringers, not to mention society as a whole). However it is a mistake to ignore the practial impact such a standard imposes on the function of the PTO in establishing the patent grant in the first place. Using a High standard results in either a flood of patents that, in the long run and with more resources available to it, get invalidated, or else more resources need to be given during the examination process (such as better search tools, and more time to gather and interpret the prior art) which boils down to a costlier PTO (they have a goal of reaching 4,000 examiners when I can recall a period during the Carter administration when there were less than 1,000). Part of a functioning patent system in a real world must include some degree of administrative convenience in setting standards like this as opposed to some theoretical perfect world.

Re:Obvious

[tjeffer]

I largely agree.

like the definition of porno, maybe?

[DanTheLewis]

Except obvious means you don't know it when you've seen it, you know it when you've foreseen it.

SCOTUS?

[OldManAndTheC]

Ugh. What a horrible acronym. It sounds like some nasty disease:

Doctor: So, what seems to be the problem?
Patient: Well, I have this persistent burning sensation, um, "down there".
Doctor: I see. Do you also feel as if a hundred tiny spiders are crawling up your anus?
Patient: Wtf!? How did you know that!?
Doctor: Uh-huh. Sounds like SCOTUS. You'd better drop your pants. I'll get the probe ...

Re:SCOTUS?

[Anonymous Coward]

Please begin your posts with the acronym you are making fun of, so that we don't read the joke thinking you are talking about "IANAL" instead of "SCOTUS".

Re:SCOTUS?

[Robmonster]

Well it was in the subject line. What more do you want?

Re:SCOTUS?

[zootm]

You're thinking of SCROTUS.

Re:SCOTUS?

[Anonymous Coward]

Patient: Wait! What are you..... IANAL!!!!!!

Re:SCOTUS?

[Anonymous Coward]

It to be at the start of the main body of text.

Re:SCOTUS?

[phonicsmonkey]

Doctor: I see. Do you also feel as if a hundred tiny spiders are crawling up your anus?
Patient: Wtf!? How did you know that!?

Doctor: I ANAL.

Great examples of the obvious patent

[Anonymous Coward]

Look at just about any Color Kinetics patent. All are based on using PWM to control RGB color generation using LEDs. Something done for years before their core patents were filed!

good point

[kozumik]

I particularly liked your reference to "patently obvious" which is a term many people probably use without considering its meaning.

The general principles for determining what's "patently obvious" have existed for a long time. One could say that the definition of obviousness isn't itself obvious, but it should by now at least be common knowledge to skilled practitioners of the art i.e. the patent office and courts.

Check out the Peer Patent Project

[thbb]

While not over-optimistic on its capability to solve the problem, the Peer to patent project is an initiative that has good support from the industry, seems able to lobby the USPTO efficiently and could drastically reduce the number of obvious patents actually granted.

In two words, they propose to use web tools such as wiki and comment areas to let anyone involved in the patent world (inventors, lawyers, competitors...) comment and annotate patent applications before they are reviewed by the patent examiner.

This seems a nice balance to me between ease of implementation (very few changes to the law and practice of the patent office are required to implement this initiative) and likelyhood of improving the situation.

Re:Check out the Peer Patent Project

[Lijemo]

In two words, they propose to use web tools such as wiki and comment areas to let anyone involved in the patent world (inventors, lawyers, competitors...) comment and annotate pa

I really like this idea. The patent examiner can do his/her job as he/she is accustomed, but has access to much more information much more rapidly as to whether someone skilled in the field would find this invention "obvious" and whether there exists "prior art". A patent examiner can't be an expert at every subject that comes across their desk (nor can the patent office keep up with hiring experts in every new field as it is developed).

his proposal would take some of the discussion about prior art and obviousness back to BEFORE a decision is issued, thus BEFORE litigation is needed in order to be heard. Sure, there are likely to be a lot of useless (read: unsubstantiated) comments posted, but with good references ("See prior art here", or "this, this, and this indusry reference talk about similar things, indicating obviousness") could save insane amounts of money in needless litigation later.

P.S.-- thank you for not using that overused and annoying buzzword in your post.

Actually followed this...

[thebdj]

case for several months and SCOTUS, I think, shocked a lot of people by taking up this case. Many people, mostly those of us who are pessimists, thought that the Supreme Court would brush this off since they have largely not interfered with patentability issues and relegated most of the work to the decisions made by CAFC (Court of Appeals for the Federal Circuit). This current case really drives at the heart of obviousness, something that it seems the court hasn't taken a stand on since the Graham Factors were established in the 1960s.

The CAFC created the standard requiring a suggestion of obviousness during the 1980s, and this has yet to be tested before the Supreme Court. The argument used should be, and possibly is, that the CAFC basically eliminates the person having ordinary skill in the art. (See here) SCOTUS even rejected a claim that the prior art had no motivation mentioned when they originally ruled in the Graham v. John Deere case.

Most anyone inside the PTO is going to tell you that the requirement for a suggestion to make a combination of two pieces of prior art for obviousness reasons is a great burden. The supporters of KSR are mostly tech companies, who know that many of the patents that are inhibiting growth of that industry would be ruled obvious if not for the suggestion requirement. I have also heard that companies against it are the drug companies, but then again, they are not getting sued left and right and are simply milking American's dry on patented drugs...some of which would probably lose patent protection if this gets rid of the suggestion requirement.

There is one potential downside of the Supreme Court ruling in favor of KSR and removing the requirement for suggestion is that the PTO could be swamped with re-examination requests for a lot of patents. Eventhough I no longer have much personal interest in the outcome, I will continue to watch this case since it could turn into the biggest ruling SCOTUS has made in relation to patents in a very long time.

Re:Actually followed this...

[Sangui5]

some of which would probably lose patent protection if this gets rid of the suggestion requirement.

Or rather, virtually all. There really aren't that many truly new drugs--mostly just applying a few standard tricks to old drugs to extend the patent protection. The worst (IMHO) are:

1) Obvious compounding. A good example is pain medication. Acetaminophen (Tylenol) has an unusual method of action which is synergistic with nearly every other analgesic, and rarely interacts with other drugs. So, the drug company will file a patent on their new painkiller, and then (just before the patent is made public/the drug is approved), they'll patent mixing it with acetaminophen. Doctors prefer prescribing the mixture because it has a percieved lower risk of abuse (due to the liver toxicity of acetaminophen), so the generic unmixed version isn't used so much.

2) Racemic mixtures. Many drugs have left handed and right handed versions. Often, one version or the other is more effective/safer. Especially since the thalidomide incident (anti-nausia drug where one versoin (left?) caused birth defects) testing both versions is standard. Yet the drug companies can get separate patents on the left, right, and mixture versions. Sometimes, the patent on the left or right can be used to control the mixture, especially if it is difficult to make just one version or the other. Regardless, it gives the company a "new" drug to market and to compete with the generics. Prilosec and Nexium are an example of this.

3) Particle size patents. Hmm, it just so happens that a certian size granule is "better" than others, and the standard manufacturing technique (whose patent is expiring) makes that particle size (or at least contains it)...

4) Time release/enteric versions. Coating something (with a standard, commonly used coating) to make it time released or gentle on the stomach isn't obvious, for some silly reason.

Sometimes I wonder if the problems with the high cost of healthcare aren't really caused at all by the healthcare providers or insurance companies, but are almost entirely a regulatory problem--stupid patents on drugs & medical devices driving costs up.

Re:Actually followed this...

[Anonymous Coward]

How exactly is the company that developed the new drug able to delay the patenting of obvious modifications? It seems to me that they would have to patent all obvious modifications as soon as they patent the original invention, since if they don't, surely their competitors will. There is after all nothing to prevent a competitor from patenting something that relies on your patent.

Don't worry, I'll take care of this.

[Junior J. Junior III]

I've just submitted a patent on the court's decision. Whatever it is, it won't be obvious, so I'm pretty sure I've got them where I want them now. When they render their decision, if I don't like it I'll sue for patent violations and they'll have no choice but to redact.

Even more SCOTUS?

[Jesus_666]

I think it sounds more like some kind of ammunition.

"I don't care whether they have the bigger guns. We're using APDU rounds; I want to see them try to trump that!"
"Well, sir, they're using SCOTUS rounds."
"Okay, we're fucked, then."


Alternatively, SCO might have decided to go international and call their main branch the Santa Cruz Operation of The United States.

Oh great....

[blackbeaktux]

Oh great, now I'm going to be out of a job. Come, Blinding Flash, my trusty sidekick - we're closing up shop.

-Captain Obvious

Lawyers rejoice

[blackbeaktux]

Since this is the law we're talking about, obfuscation is a way to make the obvious less so. An unconventional description may moderately limit the breadth of the intended reach of the patent, without really compormising the actual protection (read: patent leeching) it provides.

What?

[Aqua_boy17]

Um, IANAL either but I have to take issue with the second example you cite.

In that case, the court ruled in favor of a local government stating that it was within its rights to confiscate a piece of private property and offer it for sale to private developers. That is a much less passive picture than the one you are painting and has led to a conservative backlash. Remember this story?

I have followed this issue closely as my own city government (Hollywood, Florida) was one of the first to report nationally that it would sieze private properties in our downtown area and turn them over to developers. So far, the city has lost a couple of court challenges but they have not lost sight of their greed^H^H^H^H^H^H^H^goal to sieze this property and give it to developers at a bargain price. Apparently the Supine Court (as my Father is fond of calling it) has ruled that one of the basic tenants of a free society, the right to own private property, no longer applies when the owner is in the way of a local government's pet project.

Re:What?

[Ravensfire]

To be really anal, the Court more accurately said that the US Constitution allows this, but that the States and local communities can (and should) further restrict such actions.

Applying big, broad standards isn't always a good thing. The solution to this, and what has happened in many places, is that the states and local governments need to discuss and determine the limitations of eminent domain in their area. The needs of one community may not match another, so the rules can, and should, change.

-- Ravensfire

Re:What?

[Aqua_boy17]

Granted. But would you not agree that a right as fundamental as the one to own property is guaranteed by the Constitution and therefore its protections need to rest at the Federal level? Otherwise, what's to keep each and every little community and hamlet from writing their own property rights laws and enforcing them any way that they see fit? This is in effect what is already happening with the CRA's in some areas such as mine.

In in my city the local politicos quickly tried to put the best face on this after all the bad press they received by enacting an ordinance stating that they would not use eminent domain to sieze any personal residence. But I honestly don't see the difference. Private property is private property period (with the only plausible exception being some sort of right-of-way or other pressing issue that took precedence). What if the commercial property that I own is also the means by which I raise the income to pay my mortgage on my place of residence? By siezing this property the city would also be confiscating a significant source of income for the owner and possibly also lead to the loss of his/her home.

In both cases IIRC, the issue was not a pressing need for a road or school which would be of public benefit and (conceivably) justifiable under eminent domain. In both instances the local governemt wishes to confiscate private property from owners by having the CRA's designate the areas as "blighted". This then supossedly justifies their turning the property over to the developers. In the New London case I don't know whether the "blighted" designation is warranted as I've never been there, but I did see that some of the properties in question had been in some families for as many as 5 generations. In the case in my city, this area is anything but blighted and is some of the most desired property in my county. They are using the designation as a land grab loophole to benefit the developers (and also undoubtedly their re-election campaign coffers) and nothing more. It is all about greed and has nothing to do with the greater public good.

Re:What?

[Ravensfire]

Take a municipality that's starting to struggle, a large employer or two has left, the median income has dropped, and there's not much hope for a turn-around.

The community is probably fine, and can provide basic services, but that's about it. No community center. Minimal parks. Fees for trash pickup, leaf pickup, etc.

A developer comes and presents a plan that would dramatically change the prospects of that city. A strong core of residential and commercial locations; new growth - a chance for the city to be reborn, to be vibrate again.

Is that worth it? Does the potential justify the taking of private property? (local example - new shopping center has led to a massive improvement in a local community. Did the benefit of 10k+ residents and 100k+ consumers outweigh the costs so 10-20 owners? In this case, yes)

The Court essentially said that such decisions should be locally made by ruling that there isn't anything federal to restrict those actions. What caught everyone by surprise is that there were minimal local rules about this, and that was a shame. It's been going on for quite some time, but didn't get significant media time. The ruling brought the issue up to mainstream attention where it needed to be.

You gave the example of non-blighted areas being taken - that goes against my personal views of when ED should be used. The fact that loopholes exist should be blamed entirely on the elected officials that created them.

There are times when the public benefit from a project should require that private owners sell their property at a fair price. That process needs to be clear, open and fair to all sides. It should only be used when the benefit is significant for that local community, the benefit is needed by that community and the chance of harm or stagnation by the community is likely if the action is not taken.

-- Ravensfire

Re:What?

[Zeinfeld]

It is somewhat strange to find conservatives so hot under the collar about the property developer issue. It is a matter of record that President George W. Bush made his millions from precisely this type of theft. The reason the other owners of the ball team wanted him to be their public face was that they wanted the local government to pay to build them a new ball park and as part of the process use their compulsory purchase powers to buy large amounts of adjoining property at considerably below market price.

Or maybe its not so strange to find out that politicians are hypocrites.

The problem with that particular case was that there are certain cases where there is very good reason to allow a local government to use compulsory purchase powers. Without them it would be impossible to build roads.

There are even cases where it makes sense for the government to purchase land and then sell it to developers. There are large areas of New York City that are slums owned by property speculators who have no interest in developing the land themselves, they are just holding the land until someone else develops the adjoining land and makes their plot increase in value.

The supreme court wisely decided that it could not set a general rule for such cases beyond the most basic question of requiring a fair price to be paid (defining what a fair price might be being a much harder question).

In this case patent law is an entirely a creation of government. Without government there are no patents. The question of where the balance should be between patent rights and competition is something that they can and will rule on in very general terms.

Re:What?

[Abreu]

A developer comes and presents a plan that would dramatically change the prospects of that city. A strong core of residential and commercial locations; new growth - a chance for the city to be reborn, to be vibrate again.

And a monorail, dont forget the monorail!

Re:What?

[wealthychef]

It is somewhat strange to find conservatives so hot under the collar about the property developer issue. It is a matter of record that President George W. Bush made his millions from precisely this type of theft.

You seem to be arguing that because one person whom you consider more conservative than yourself (George Bush) "made millions from this type of theft," then other people whom you consider to be conservative cannot defensibly consider eminent domain, etc. to be wrong. Your logic is bizarre but not uncommon. Just because one person of an ideological stripe does something against his/her principles does not mean that the principle is not defensible. You are just making a cheap swipe against a broad swath of people that you consider your political enemies. I wish more political discussion were about ideas and principles as applied to actions, rather than about partisan political foolishness. This is why our founding fathers hated the idea of "factions" which are what they then called parties.

Re:What?

[jadavis]

The solution to this, and what has happened in many places, is that the states and local governments need to discuss and determine the limitations of eminent domain in their area.

Try replacing "limitations of eminent domain" with "limitations of speech" to see what you're really saying.

To confiscate land for private use is a violation of the 5th Amendment, and should be prohibited throughout the U.S.

Re:What?

[Ravensfire]

Define "private use".

Is it soley private use if the new use results in significant and new tax reveneues for the city? Is this justified if the city is quite well off? If the city is deteriorating?

Is it soley private use if the new use is public park? Mixed private development and public park?

ED should be used for the benefit of the public - I think nearly everyone can accept that concept. The problem is defining "the benefit of the public", and when that benefit outweighs the rights of the current land owner.

I've always thought that an land acquired through ED should have 2 costs associated with it. First, a fair market value paid up front to the owner. Second, the greater 10% of the increased property value or 10% of the original valuee to be paid on the latter of 10 years after purchase or 7 years after development, but no more than 15 years after purchase. This way, if the land is turned into a private development, and the value goes up, the original owner gets an additional payment.

There are times, I believe, that the rights of the commons must outweigh the rights of the individual. When that happens, the individual should be compensated for both their property and their trouble, and share in any potential benefits.

-- Ravensfire

Re:What?

[Anonymous Coward]

No, the point is that it's not ok to make a determination of "the needs of the many outweigh the needs of the few." If you start using that rationality, you'll decide it's ok for police to violate the rights of criminals by using things such as the case where they tried to use a recording of the religious confessional. The fact is, once you allow that line of thinking, it begins to warp from violating just a few for the majority's sake to being able to violate everyone "for the better good." No, communists may think "the better good" works, but, here in a real human society we know that it doesn't work unless you are unfeeling robots.

Re:What?

[jadavis]

Is it soley private use if the new use results in significant and new tax reveneues for the city?

Yes. Private use of resources often has side effects, that doesn't make it any less private.

ED should be used for the benefit of the public - I think nearly everyone can accept that concept.

No. "Public use" is not "public benefit" (or "public purpose" as the SCOTUS said). If you allow confiscation of private property for "public benefit" you have one of the following: socialism, fascism, and/or communism.

I've always thought that an land acquired through ED should have 2 costs associated with it.

You do not solve the heart of the problem by trying to mandate "fair" (always a bad idea).

The ONLY correct uses for ED are true public projects: roads, dams, etc. I don't care how much tax revenue something generates. It must be for public use, or no ED.

There are some things that could be argued about at the local level regarding eminent domain. However, if the reason the government is confiscating the property is to transfer it to another private party, the answer should ALWAYS be "NO". The most liberal reading of the 5th + 14th Amendments would require at a minimum that the land be owned and controlled by the public after using ED.

Re:What?

[japhmi]

It is somewhat strange to find conservatives so hot under the collar about the property developer issue. It is a matter of record that President George W. Bush made his millions from precisely this type of theft.

I knew a liberal who drove an SUV, therefore it is somewhat strange to find liberals so hot under the collar about enviromentalism.

BTW, just so you know, many conservatives complain about GWB not being conservative enough. Many don't consider him a true conservative.

Re:What?

[Zeinfeld]

BTW, just so you know, many conservatives complain about GWB not being conservative enough. Many don't consider him a true conservative.

Neither do I as it happens. But folk who get hot under the collar about such issues should have some idelogical consistency.

One of the more interesting effects of the blogosphere is that liberal bloggers have been attacking Jefferson and Mollohan. Both involved in some stinky deals. No quarter is given despite the fact they are both Democrats.

Neither party wanted to go after the slew of crooked earmarks that several members on both sides, including Hastert have been involved in. It was a nice little earner: buy some land, get an earmark that increases the value, sell out. I can see why neither side would want to lift the lid on that cess pool.

But heres the new rules, the blogosphere does not care that some folk on their own side may be taken out as collateral damage. It would be nice if the Republican blogs were attacking Hastert as assiduously as the Liberal blogs are attacking Mollohan for the same thing. But don't worry, that will happen soon enough.

We are retaking the US government for the people one crooked politician at a time.

What, no Microsoft bashing?

[oharab]

All these comments and not one of them has bashed Microsoft for being one of the amici. Is this really /.? Or have I dropped into a strange dimension warp of some sort?

Oh, wait...they're on the side of good and light on this one.

Patent office WILL like it

[tinkerghost]

They are over a million patents behind and falling farther behind every day. Most of them are junk patents that should never have been put to paper let alone submitted. If there's a clear definition that taking a bunch of legos & assembling them as a truck is not patentable, then a good chunk of those patents will dry up.
Let's face it, we all agree that double clicking shouldn't be pattentable. The original mice were developed (iIrc) in the late 60s. The process was click - drag - click instead of click/hold - drag - release. (At least that was the process for the one I built for my C64 about 82-83.*) Since you already have the system for diferentiating mouse click meanings based on previous clicks, a 'once to select/twice to run' sequence becomes obvious.

*Never did get the lightpen to work right though.

What am I going to do?

[Jerim]

Wait, I won't be able to patent stupidly obvious things anymore? Oh no!!! I might have to actually get a job and make a real living. This can not stand! Time for me to sell my library of patents for turning on a light, sitting in a chair, making cigarettes, etc.

hurts innovation ?

[e_AltF4]

Whenever i hear "hurts innovation" a voice in my head translates this to "please protect our monopolies - here is some more money"

WE CAN BUST Obvious Patents

[MrsAgentSmith]

The public already has the power to submit a request to the USPTO, to reexamine a patent; it includes submitting prior art not on the record (not already submitted by the patentee.) The procedure is called "Ex Parte Reexamination." Details about this are included in the patent examination guidelines and is actually a part of the code of federal regulations (CFR): "37 CFR 1.510 Request for >ex parte (a) Any person may, at any time during the period of enforceability of a patent, file a request for an ex parte reexamination by the Office of any claim of the patent* on the basis of prior art patents or printed publications cited under 1.501. The request must be accompanied by the fee for requesting reexamination set in 1.20(c)(1)."

*In US Patent Law each claim in a patent stands on its own as valid or invalid.

Unfortunately, it involves a fee (ahem, $2500. . .), which already throws it in the big-companies-with-deep-pockets sandbox. One would have to have considerable investment tied up in something to go that route (take that route if you can use the additional prior art, and even then it might be easier and quicker to divert your attention to coming up and implementing a design around.

No. I Am Not A Patet Examiner.

Are Combination Patents Good?

[RogerRamjet98]

I know this may seem crazy, but I am going to actually discuss the contents of the article . So far, only about 3 posts have been on topic. A new low.

The court is being asked to interpret "obviousness" as it applies to COMBINATIONS of EXISTING DEVICES/TECHNOLOGIES (Specifically, off the shelf products).

So, 10 years ago, people started selling TVs with Built in VCRs. Both underlying products (TVs and VCRs) are effectively public domain (in concept, some implementation details may not be -- not that it matters for this case), but by assembling them into one package have I created a new and patentable invention?

I personally feel the answer is NO. I think most Slashdot readers would agree. The Software companies are on the GOOD side of this one. Software, perhaps more than any other industry, is all about adding and combining existing tech.

The Drug Companies are against this sort of thing because it reduces their ability to maintain patents. They like being able to patent new methods of delivery existing drugs, for example.

To me, a patent should protect an underlying technology that was difficult to develop/invent. Combining two things, even if combining them ISN'T obvious, doesn't (IMHO) warrant protection because there was no technological risk, no R&D, etc...

The problem

[Anonymous Coward]

Obvious patents should be xyz and etc...
The problem is not the patents the problem is the law. Every day congress adds more garbage into law and no one protests no one cares until (bad word) hits the fan and creates a situation that affects a bunch of people. Coffers get filled and the lobby continues. If the law was created, updated and modified as times change and things change we wouldn't have this problem. With all the patents that have been created obvious or not the sheer amount of time, lost profuctivitu and tax dollar spent far outweighs the litigation expense incurred by those who must defend their unique ideas from those who intend to copy. Those who file and get patents for the sake of having them should have all patents stripped. It is insane to think that you could have a company or a person spend years researching and Idea. To make a product or service only to be denied the fruits of that labor because of some troll who decided to run and get a patent for something similar

I can't believe no one posted this yet

[deblau]

For those of you out there who are wondering what the '1952 patent law' really says (you know, so you have some ammunition to argue from), here it is:

A patent may not be obtained . . . if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. 35 U.S.C. 103(a) (2000) (emphasis added).

Some things to note:

1. Courts look at the differences between the invention as a whole and the prior art. Individual parts and pieces may have been invented before, but the combination may not be obvious. Courts look to things like whether there was some teaching or motivation to combine the ingredients.
2. The comparison takes place at the time the invention was made, not right now when we have the benefit of hindsight. As has already been linked to, see the story of Columbus' Egg for why we want to do this.
3. The person who is analyzing the differences is a person having ordinary skill in the art (PHOSITA). The difference between a transistor and a vaccuum tube may be obvious to an electrical engineer, but not to an architect. Lawyers fight over this skill level in litigation.

Think about a (perhaps not so) hypothetical suit over the peanut butter and jelly sandwich. Peanut butter was known, jelly was known, and bread was known. Was there some published motivation to combine them (or more generally to combine nut spreads with fruit preserves on an edible substrate)? The court would likely look to contemporaneous cookbooks. The fact that it's obvious in hindsight helps make the sandwich such a good idea, but was it obvious at the time (using only the knowledge of cooking at that time)? The defendant will argue that it was, the plaintiff that it wasn't. What's the skill level of the PHOSITA? Probably pretty low -- anyone who cooks likely qualifies.

These are the sorts of questions courts (and patent examiners) ask when evaluating obviousness.

Ob comment: applying all this law to TFA, some of the Federal Circuit's possibly strange statements start to make sense. Perhaps even the statement from TFA, that "a combination of preexisting, off-the-shelf components in which each component performs exactly the same function that it had been known and was designed to perform" is not necessarily obvious.

Re:I can't believe no one posted this yet

[deblau]

Normally I wouldn't reply to my own post, but I've just read the KSR petition to the Supreme Court for review. The exact question they would like answered:

Whether the Federal Circuit has erred in holding that a claimed invention cannot be held "obvious", and thus unpatentable under 35 U.S.C. 103(a), in the absence of some proven "'teaching, suggestion, or motivation' that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed."

As I posted above, courts often look to such suggestions when deciding nonobviousness. The question here is whether the statute requires them to find a suggestion to combine. KSR is arguing that the Federal Circuit says you are required, while the Supreme Court (and seven other circuit courts) say you aren't. For what it's worth, the Supreme Court agreed to hear the case.

Your anecodote doesn't apply

[typical]

That problem's challenge is based on a misinterpretation of the problem. One assumes that Edison is challenging you to also not break the egg -- it's a reasonable assumption. Edison didn't specify that you not break it, but common speech usually is not logically rigorous -- you need to fill in the blanks.

This does not relate to having a real-world problem placed in front of you. There is an actual problem. It may be that someone wants to be able to find web pages related to some item of interest quickly or it may be that they want to avoid losing data when their computer loses power. You know what must be solved.

Nobody awards patents for figuring out what a customer was trying to specify in his requirements sheet, which is the closest analog I can think of in the software world. This is not a justification for the existence of software patents.

what test for obviousness?

[silverdirk]

I have a friend working in the patent office who says that they actually don't have a test for obviousness. The way he told it, sometime back in the 80s there was a big fuss about the patent office rejecting everything, and they went from a "applicant proves non-obviousness to get patent" model to a "examiner proves obviousness to reject" model.

It is of course nearly impossible to prove that something is obvious, and back up that claim when the indignant raving "inventor" comes in to protest and complain. My impression is that prior art is the only thing used by the patent office to determine whether or not to award the patent, using the (flawed) logic: "it is obvious if someone else thought of it first [and didn't patent it]".

My friend also related (second-hand) some funny stories about applicants who were banned from the office for behavior-type stuff, like attacking the examiner who rejected their patent. You have to keep in mind that these patent folks are working in a public office, and don't really have an incentive to annoy the percentage of nutjobs who file for patents of crazy/obvious stuff.

hrmhhm

[koroviev (begemot)]

I actually wrote this idea to Apple about 1.5-2 years ago, in their feedback page, after I got my first iPod (40gb). I complained that the interface is useless, as I keep it in my pocket, use my fingers to operate it without watching and always keep it on shuffle for that reason. and that I dont need more storage capacity than then 10 hours of music which is the battery capacity. I also pointed out that the best way to resolve this would be a voice interface (a talking ipod) which reads you the menues and the songs (if Apple 2 comps could pronounce words than an iPod surely has the computational power to do the same). Fisrt thing that happend was that the iPod shuffle came on the market some months latter. Now a voice iPod :) great :) actually, I did write this idea (voice menues) in slashdot as well (as anonimous, i think, or another nickname) in one of the patent discussions - I used it as example. I cant find it right now. Does this mean that the patent is null and void, as it is already public knowledge (with a date, in slashdot)? on the other hand - this was written less than a year ago, and the patent (if public now) is probably older than this.. not that I mind (I like apple and ipods) but... cant really use it my CV, can I :) Thats the end of giving you good ideas Apple, from now on Im writting them to mm.. Creative, i guess :). Unless you decide to hire me :) (and you have my e-mail)