Test for "Obvious" Patents Questioned

bulled writes "News.com is running a story about a case coming before the US Supreme Court on testing new patents for 'obviousness'. The decision has potential to significantly impact the High Tech industry." From the article: "Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly 'obvious' combinations of pre-existing inventions."

Comments

How about reforming patents all together...

[pembo13]

so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line. So just let the little guys benefit, and the public as a whole may just benefit some more. (I do not really consider lawyers to be part of the public - sorry)

Re:How about reforming patents all together...

[fyngyrz]

I do not really consider lawyers to be part of the public - sorry

Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades. Speaking of the US, as a US citizen. Not familiar with other systems. Entirely too familiar with ours.

Re:How about reforming patents all together...

[MightyYar]

No system is perfect, but it is much harder for a government to fail than a company. As bad as Dilbert's world is, it pales by comparison to the workings of a government agency.

At any rate, even if Merck turns (turned?) into a big bloated mess, they still have the capital and opportunity to snatch up a small startup with promising technology. Many, many of these small startups fail - but many are also snatched up by the bigger guys. Thus, even when the big guys get bloated and unresponsive, bleeding edge research can still occur because venture capital will fill in the niche. Actually, this is a pretty nice arrangement, because the big, bloated company is probably very good at all of the bureaucratic stuff involved with testing and getting a drug approved with the big, bloated government. If government were the only game in town, there would be no venture capital to fill in the niche - and I'm not at all confident that the government would fill it themselves.

I'm not one of these crazy capitalist guys, but I do happen to think that it works pretty well if you are willing to put up with the inevitable cycles in the market. Government is good for slow, plodding, and steady. For this reason, I happen to be fairly pro-free-market, except when it comes to critical infrastructure like food, water, sewer and electricity. Some free market is okay in these cases, but frankly I'm willing to pay a premium for my food if it ensures a steady, affordable supply :)

The issue is obviousness *before the fact*

[BadAnalogyGuy]

Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.

Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

Ask anyone who has submitted a patent application whether they felt their patent was frivolous. I imagine you'd find the vast majority of them holding the belief that they did something novel.

Re:The issue is obviousness *before the fact*

[eklitzke]

I agree with you completely.

The amount of things that we take for granted is just enormous. Let me explain. Right now you are undoubtedly using a multitasking operating system, meaning that you can run more than one process at once. It is really non-obvious that such a thing is even possible, let alone can be done efficiently. For those of you who don't know how it is done (and I bet even on Slashdot, most people do not), how would you overcome this problem? How are you going to make sure that once the kernel gives a time slice to an application, the application will give it back? How are you going to make sure the application doesn't corrupt the location in memory the kernel resides on?

Here is another, more basic example: writing. Homo sapiens existed for tens of thousands of years all over the globe, and only a handful independently discovered written language. To us it seems perfectly obvious that you can express spoken words in some sort of symbolic form and preserve it as writing, but this is not an obvious concept.

Let me take the writing example one step further: what is the most obvious way to write a language? With pictographs/ideographs. Each word is its own character. The idea that you can express this written language purely with phonetic components is really a novel concept, even to me, a native English speaker.

I am a math major, so my final example will be from that realm. Think about high school algebra. What does f(x) = x^2 look like? A parabola, right? That idea is a very recent development in mathematics (within the past few hundred years). The idea that you can do the opposite -- express geometric relations in algebraic terms -- was equally as innovative. To us it is obvious that you can interpret algebraic functions as curves or lines, that you can write a formula to express the area of something, and that you can draw mathematical structures. But these things are *not* obvious!

The idea that I am driving at here is that there are many, many things that we consider obvious that clearly aren't. While I feel that many patents clearly are obvious, and that there is a considerable amount of patent abuse in the system at the present with respect to obvious patents (my current employer comes to mind...), it is really, really hard to say what is obvious and what is not when you have hindsight. If you were a programmer and only coded in C your whole career, do you really think that you would be able to come up with the idea of an object oriented language? Or the idea of automatic garbage collection? When someone comes up with a truly novel idea they deserve to be able to patent it. And while there is a lot of abuse in the patent system, I suspect that in many, many cases things that are now considered obvious were considered revolutionary at the time of their invention.

Re:The issue is obviousness *before the fact*

[mark-t]

The problem with patenting methods that are implemented by software, however, is that all algorithms are simply logical steps... the fact that these steps are simulated at an abstract level within the cpu cycles of a computer is irrellevant, logic is an intrinsically mental construct, and they are ultimately just mental steps that ultimately involve no more than the appropriate sequence of logical AND, OR, and NOT operations on binary digits. Mental steps are not supposed to be patentable, so algorithms, regardless of how innovative they may be, should not be patentable. Software is copyrightable anyways, so the idea of patent protection should even at best be superfluous.

Why even allow any patents?

[Karganeth]

Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product. The market suffers and the consumer suffers. There is less competition, which means the company owning the patent doesn't have to make it's product so much better. The only possible upside is that it would give inventors an incentive to invent things. Though why not just give them say 10% of what the product makes for the next 5 years or some other similar system?

My simple "obviousness" test:

[Jesrad]

My test is: get three experts in the field of application of the patent, have them read the title of the patent. If any of them guesses the method employed in the patent, send the application to the bin.

On a more serious note, patents shouldn't be checked for "obviousness", they should be checked for ingenuity instead.

Medical research and patents

[Per Abrahamsen]

> The state funding drug research itself would also bring with it the not inconsequential benefit
> of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

In most of the civilized world even the "private" medical research is tax funded, as a large part the medicine is financed over taxes. Cutting out the middle-men would be an obvious way to optimize the system for two reasons: 1) Public researchers have a much larger liberty to (and are strongly encouraged to) publish and share results at a much earlier stage than researchers in private corporations, where the final patent applications is usually the first publication of the research. 2) The current medical research is heavily unbalanced in favor of patentable items, starving out research in new uses for existing (non-patented or patent-expired) compounds for other diceases, as well as the effect of life-style changes and other non-medical treatments.

Um, the gov't does just fine thank you...

[rsilvergun]

Many, if not most drugs are created based on studies and research done by the Government. The Government does the really expensive work, and release the research for free. Then drug companies take that and polish it up into a drug. Most of the cutting edge stuff gets done at Universities on the public's dime, because drug companies won't fund something that isn't going to be profitable in more than 7 years.

Re:Isn't it strange..

[EMB Numbers]

As others will surely point out, mathematics are generally not patentable today, and patents didn't exist when Pythagoras, Leibnitz and Newton were innovating. I wonder why they bothered to innovate then ?

I don't know if the PnP junction was patented (by IBM?). All of the basic math and theory for what to do with collections of switches (like PnP transistors) was well know hundreds of years before the invention of transistors. Computers composed of tubes and/or relays and/or gears all existed.

Was the flip-flop circuit patented ? Was the AND gate circuit patented ? Was the "while loop" construct patented ? Was the "if" statement patented (well, "if not" was patented by Microsoft!).

Re:How about getting rid of patents all together..

[Elektroschock]

Patents are for inventions, not for 'innovations'.

The best approach to solve the softpat problem is lobbying against them. The approach was succesful in Europe and is much cheaper than any fishy patent agreement deals.

Maybe we need a different copyright style system for software designs. Patent law is designed for classical big industry needs, the individual inventor is a myth. No, you cannot fix patent law to serve software industry protection demands.

Unfortunately US patent reform lobbyists go fishing red herrings. Novelty, Obviousness... That is not the way to solve the softpat mess. It is a label for a patent examination test, a dogmatic test which has nothing to do with your imagination about what you think is new or obvious. The 'person skilled in the art' is a legal fiction and does not refer to you.

The problem can be solved but don't try to be smart when there is 'prior art' in patent reform. The inconvenient truth is that there is absolute no proof in economical research that the patent system works at all. That is a economist's credibility test. Most high ranking IP economists will admit it. What we further know is that in dynamic service markets patent law causes much harm. So let's talk about scope of patent law. Let's talk about governance of the patent system. Uhh, that hurts our poor patent institutions. The first step for the USA would be the application of a technical contribution test and a reform of the utility test. Then the USA, switched to first to file, could join the European Patent Convention which would help to solve a lot of problems.

I know how to fix the system. All I need is ressources.