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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."
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)
"Thanks for all the money you paid to us. We've used it to buy off ISO among other things" -Microsoft
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.
Like most actions that measure, while things look tidy on paper, applying them is where the trouble shows up.
As the example going begging here....just who gets to decide what constitutes 'obviousness'...?
Because at the end of the day, we're going to be left with only those things that are SO obvious they don't need to be pointed out, and there goes the process.
"One man's window is another man's door...one man's ceiling is another man's floor - one man's princess is another man's whore."
We so desperately need this! When you can get a patent on anything, it makes patents in general worth less. This is why companies now collect them as armor. Hopefully the court will make them much harder to get. The effect will make the patents that are granted much more valuable. No truly innovative company can be against this. IP lawsuit companies on the other hand...
At least for Software it would make a whole lot of sense.
If you don't fail at least 90 percent of the time, you're not aiming high enough. (Alan Kay)
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 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.
Maybe we deserve this world ?
1. Patent "obviousness" test algorithm
2. Collect royalties recursively from patent office
3. PROFIT!
biopowered.co.uk - catalytically cracking triglycerides for home automotive use since 2008. Just say no to big oil!
What about if the inventor has to show proof about his effort which made his invention possible? I mean if his invention is just a simple idea (like the metal wrapping of batteries in the article) with no real effort behind it then it is an obvious idea.
The patent system compensates the inventor for his time and money to make the invention. If there are no such things behind an invention then what the patent system compensates for?
Government cannot make man richer, but it can make him poorer. - Ludwig von Mises
http://www.law.com/jsp/article.jsp?id=116463689942 5 is the law.com/Legal Times article on KSR International v. Teleflex, which will be argued before the Supreme Court today.
As the article points out, depending upon how wide ranging a decision the Court issues, this case has implications for millions of patents, many of which have been considered unassailable, having stood up to years of attacks.
Because people were continuously looking for arguments why 'a person having ordinary skill in the art' would not arrive at the invention. And apparently, lawyers/patent attorneys were smarter than judges in digging up arguments why something would NOT be obvious. In the end, it currently boils down to the person skilled in the art really requiring an incentive to combine (with neon signs indicated almost) two teachings for something to be not obvious. Little bit to far on, I'd say (even as a (non-US) patent attorney).
How to proceed? Install a new standard? Sure, but not directly; gradually might be a good idea. The person skilled in the art is surely somewhat creative. If not, he would be a lousy engineer. This should also be taken into account when judging inventiveness/non-obviousness.
How to put that in arguments is another, but rather difficult issue...
Sorry, I cant even imagine what a Wolrd is. Maybe a deformed walrus? Only time will tell...
From the article: "Some say the lax rules have fueled the rise of patent speculators--disparagingly known as "patent trolls"--who make a living off predicting those incremental changes to existing high-tech inventions, landing patents and then going after companies for infringement."
This seems to be one of the real problems with the patent system: abuse. If you can predict the incremental changes to technology, then it suggests some kind of obviousness, no? Perhaps we need a "business reality check" test for patents: if you don't make a serious attempt to commercialize your patented idea with X number of years, then your patent dries up (or at least your potential damages are capped at Z number of dollars). The patent system should exist to protect ideas, not to line pockets with gold.
$nice = $webHosting + $domainNames + $sslCerts
Will this affect patents that cover taking an action (either patented or public domain) at a particular place or time?
For instance, recording a music concert and burning CDs of it to sell there at the same concert.
Technoli
At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.
The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]
Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)
Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.
So here is my strawman proposal...
Assuming for a moment that all patents (even software) are valid, there is still a basic problem with the patent system.
The ultimate goal of a patent system is to benefit the society by encouraging invention. It does this by stimulating creative individuals. It seems that the individuals can now reap rewards, which are not proportionate to their inventions.
Let the potential reward for a patent should be, for example, at the maximum ten times the investment costs for the invention; after the inventor gets this amount of money, his patent becomes public domain.
So both for companies which invest in R&D, equipment, scientist salaries, etc, and the guy who thought of his knife+fork arrangement in his basement, their time and money are repaid tenfold - not a bad ROI, now?
In most of the rest of the world, the required 'patent step' is significantly higher than in the US, where it seems to have been reduced to 'anything that at least some first-year students might not have thought about immediately'. :-(
About 10 years ago I was asked to do patent reviews on a group of 10 patents which company A would like to use to sue company B:
Of those valid US patents, 4 were really, really obvious, i.e. more or less the only reasonable way to solve a particular problem. AFAIK this means that the patent is automatically invalid, right?
The next group of 4 all consisted of taking a standard textbook algorith, without _any_ additional tweaks, and implement it as a VLSI chip.
The final 2 patents actually covered somewhat neat ideas.
Terje
"almost all programming can be viewed as an exercise in caching"
I intend to fiercely defend my "On" switch patent. There is nothing obvious about pressing an "On" switch to start a computer as thousands of computer illiterates can attest to. I also plan to defend my plugging computer into wall socket patent. Thousands of other techically challenged have been aided by my patent on this process. My "On" switch patent on monitors is still pending but hopefully that should be approved any day now. It's horrible and unamerican challenging my right to patent everything in sight. Please remember to send me a dollar if you turned your computer on today.
The article skims the big vested interests who have an interest here. There are many, many big corporations whose book value is justified by the monetary value of their patent portfolio - or "Intellectual Property" as most of them call it. Any changes in the patent validity could have a huge impact on their share prices.
Expect vested interests to dig their heels in.
The last scintilla of doubt just rode out of town
With the current mess I would agree. However were the current tech market not so frankly corrupt, suing for a fast buck with frivolous patents there may be some merit to software patents.
I would think that such patents should be reserved for seriously massive innovations, not navigating a menu or button placement ffs. As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.
We're all very familiar with his work now, but back then he was pretty much the only guy doing a lot of the work.
Software patents are here to stay, but they're screwed up royally.
What about me :), thinking of foot-mouse (slipper-mouse, pedal-mouse, ...) so disabled people can use it (or people with both hands - we can keep them on keyboard all the time)? It would be a sort of computer mouse (a pointing device), only suitable to be operated (slided) by foot, over the floor, or over a special surface or mat instead of over the desktop.
... etc. ).
Now, I don't think obviousness is measurable. "Foot mouse" IS VERY OBVIOUS, it just never (AFAIK) came to a mind (I admit, I taught of it this instant) and into a product.
Perhaps better patent validity criteria would be: "how useful the invention is (why is it better and what good comes from using it - savings, quality, etc...)" and "what (equivalent) amount of worth (money, time, work) should patent protect (the very point of patents - protecting investments in research)".
Besides, patents should be revocable if patent holder does not use it for the good of the public and his own but instead use it to fend off progress by sitting on it and not producing workable products offered to the public (i.e. a producer patenting better or competing product for the sole purpose of stopping others from developing better class of products that would put end to their product or industry, i.e. : energy efficient light bulb, electric car,
Is there a "proper" way to ensure your idea will stay patent-free without patenting it (provided it hasn't already been patented by somebody else)? I have heard about "prior art" but how do you make it ? Post idea in "classified ads"? Mail it to Patent Office and get a receipt? How come ideas from Sci Fi get patented (by readers) when there is prior art? Does prior art have to be in the form of a patent application? Are algorithms in Free Software code automatically prior art against patenting them subsequently even though they are not formally described as such?
voice recognition?.. thats just too obvious! :-)
Is why they don't go over the old ones as well, there are quite a few bogus patents out there hampering development....
-Noc
I prefer the "u" in honour as it seems to be missing these days.
We don't have to eliminate patents, just make it so that only individuals can hold them, and only for 5 years. No corporate ownership of patents and no passing patents on to heirs.
How rich is a person supposed to be able to get for having a good idea?
Same thing with copyright.
If you think that would hurt innovation, you are underestimating humanity to your own peril.
You are welcome on my lawn.
> 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.
"If they can get you asking the wrong questions, they don't have to worry about answers." -Thomas Pynchon
Once again, they've got us arguing about the implementation of a stupid idea (patents, i.e., state-enforced monopoly), rather than the stupid idea itself.
ITSATRAP
Set your phasers on "funky"!
is that, it takes mega corps to initiate a review of these things, and the Irony that it was obvious that the obviousness was obviously overlooked.
Yes, and they didn't enforce it until it became a de facto standard. That's the sort of behaviour that needs to be controlled.
Just because you're paranoid doesn't mean there isn't an invisible demon about to eat your face
Yes, little or no real evidence. Other than the whole economy as it stands today, with the recent decades of geometic growth -- unique in history -- in most sectors, including particularly the technological disciplines. If you insist that patents were irrelevant to that, you'll need some awfully compelling data.
Of course patents get abused, but patents are (at heart) an incentive system. Any argument against them must solve the daunting task of providing or proving an alternative incentive that works comparably well.
As well, consider that there are nearly eight million patents out there. What percent of them are acting as anti-competitive threats which a reasonable economist would object to? Whereas what percent of them are protecting past, current, and future research investments that bore fruit? If you insist that patents are more trouble than they're worth, you need to provide these numbers.
FATMOUSE + YOU = FATMOUSE
Let's pretend you're talking about inventive rather than innovative, because I suspect that's what you meant (most people do), and "He didn't actually invent it, but he was the person who first packaged it in a form that got it into people's hands" doesn't strike me as something anyone has said patents should be granted for. Patents are supposed to go to the first person to invent something and take it to the patent office, not the first person to make it popular.
I'm not really sure anything in CP/M qualifies as massively inventive. Kildall's CP/M became popular not because it was inventive, but because it was there. It was a simple program loader with a very small library accessable to loaded applications. Many of the fundamentals in CP/M went back to libraries that came with the Intel test rig he was programming.
Yes, many aspects of it were copied into QD-OS (better known today as MSDOS), but these were compatibility hacks rather than functionality. Things like "System call 5 writes a character to the console" (or something, I forget which call did that.) FAT was copied too, but FAT is, frankly, obvious. I'm not sure how many other operating systems prior to CP/M used the same concepts, my guess would be many, but the Unix system we know and love isn't that different - the major difference is that the filenames appear FAT's equivalent of iNodes, rather than in dedicated directory files.
Kildall would probably have disagreed with you anyway. The guy was a programmer through and through. Despite all the anecdotes, the major reason IBM didn't have CP/M86 for the PC was because Kildall wasn't that interested in it as a project. Had he been so, it would have been released a year or two prior, and Seattle Computing's QD-OS wouldn't have been written because the need for it would have been absent. If he'd been interested, when the IBM people knocked on his door, they'd have been treated as any other OEM, rather than a group needing an entirely new product.
Kildall was interested in the things he was working on, much more so than maximising the money he got and controlling the market. Short of doing so defensively, as you would today, I doubt he'd have patented anything, even if something as obvious and derivative as CP/M had been patentable.
You are not alone. This is not normal. None of this is normal.
A quote from the end of the article:
"I don't think U.S. industry is going to stand for a huge cloud being placed on their valuable patent portfolio," said Mossinghoff, the former patent commissioner.
Yet Microsoft, Google, Oracle, Intel, and Cisco, companies with immense patent portfolios are all completely behind changing the rules.
I also got a kick out of the opponents who claim this will ruin the "predictability" of the patent request process. I suppose knowing you're going to get a rubber stamp is predictable and even equitable in its own little way.
I strongly agree. It's *possible* for a software innovation to be *truly* novel and warrant a patent, but this is extremely rare. The problem is that the patent office gives them away far too easily, and lets them be far too broad. Like you say, a patent should be for some world-chagning invention, meaning a way to keep the PTO in line would be to enforce hard limits on the number of patents granted per period so they must be judicious in deciding what deserves a patent. Also, they could test a patent by taking the problem it intends to solve, and asking someone in the field, "what are some ways to solve x?". If he lists the idea to be patented, it's probably obviousl.
Apology to Ubuntu forum.
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.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
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!).
I say make it like the olympics. Each category gets say 50 patents/yr. A category would be say pharma, or chips, or fusion, etc. At the end of each year, the PTO, looks at all the submissions for the year and the top 50 get the patents. This would stop the dumb ones, (they'd never win) & make the good ones get even more noteriety. After all, one of the goals of patents was to make the technology disseminated. I ask, does ANYONE review patents for "Hey thats a great idea, I'd like to license and manufacture that?"
Of course, software patents would just not get a category. Copyright is the correct way to handle sw.
my 2 cents
who patented using the internet for online auctions. This isn't just obvious, it's using the a tool (The Internet), for it's intended purpose (near real-time communication). It's like patenting using a hammer to pound nails. Amazon's one-click is the same. I mean, who'd of though using cookies to track user state? Genius!
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
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.
Well, Pythagoras, Leibnitz and Newton were not corporations which invested share holder money to pay for the development of their work.
They were 'free' to develop at their own pace with little to no pressure to produce a profit from their endevours.
Times have changed, and laws change with them.
I am not a big fan of the patent system as it now stands, but it does have a place in current society.
Regardless of whether a patent is obvious or not, the creator should be required to provide an implementation of a software patent within 2 years or lose it to the public domain.
The same goes for purchased patents. No implementation in a reasonable time frame, no patent.
Limit the resale of patents. Initial applicant + 1 sale/transfer every 5 years. That will prevent the patent portfolio leeches from using patents and courts as a revenue model, because once they buy a patent, they have two years to implement. If they don't, it goes public domain, and they can't resell it once they've bought the rights.
Take that, SCO!
I do not fail; I succeed at finding out what does not work.
i = number of patents granted per year (estimate for next year) c = cost of running patent office f = small fee n = number of years a patent has been in effect All patents applied for would need to submit a cost of research and development. This cost would be auditable and failing an audit of research costs would also fail to get a patent. All patents would need to be renewed on a yearly basis. In addition, all patents would pay a yearly fee for the privilage of having a monopoly. This fee would be caluculated with the following formula: Fee = (f+c/i) * 2^n Such a patent fee structure would allow the patent office to run without any additional tax inputs. Further, the fact that the fee by definition excedes the cost of running the patent office would result in a surplus of funds for the patent office. These surplus funds would be spent each year by the patent office to "buy" patents into the public domain by paying back the research and development cost. The patent office could buy back lot's of small cost patents or a couple of big cost patents. The exponentially rising nature of the fee would serve to be a limiting factor in the continuation of buying a patent. Truly profitable patents would be paid for for as long as the monopoly was profitable and then when the fee wasn't paid they would become public domain. patents that aren't immidiatly profitable wouldn't likely be paid for by corporations, or if they were they wouldn't be paid for for long.
Depends which country you are in - maybe not in your country, but then 'my country' != 'world' for all countries I am aware of
My apologies - I often forget that the internet is a global forum. I was, of course, referring to the US. Your country, the UK, is following a similar path, though. Even flagship Oxford is only able to function as a result of private donations these days. I remember reading a blurb a few weeks back about how many universities in the UK have had to close their science programs due to lack of funding. There was some kind of emergency £75 million thrown at the problem, IIRC. I don't really follow affairs in your country much, but I like the BBC for it's world news coverage so I absorb some British news at the same time :)
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.
It seems to me that patenting massive innovations just means the vast corporations' lawyers have to work a little harder to rip you off and make billions off of your work. Either way, it probably won't be you that makes the billions. Your best hope is to settle for a little less than the millions they would have paid their lawyers during the law suit.
sadly true, would that it were not so
So we take 4% of the total number of patents granted at the beginning of the millenium in 2001 and this becomes the total number of patents that will be granted per annum. On a quarterly basis Patent applications will be scored on their ingenuity. Top 4% are selected and are published for public review for prior art and other defects prior to final approval. The "Sturgeon's Law" http://en.wikipedia.org/wiki/Sturgeon's_Law remaining 96% are rejected. Resubmissions of rejects must wait 12 calendar months, rejection of actually selected candidates would go through something similar to the current resubmission process. Regardless, every resubmission doubles the application fee to motivate the applicant to do a proper and thorough job on the next try.
There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
The fact that it was there at all was innovative. There was a time when serious computer professionals didn't think anything useful could be done with those toy "microprocessor" chips. If Kildall had patented it according to today's standard legal practice, he would've tried to get a patent for "doing something useful with a microprocessor".
One of the things that was unique about CP/M -- and I would guess it was innovative -- was that it had some concept of device independance. It wasn't designed for a monoculture of a single machine architecture.
Uh... do you realize that the "Q-DOS" that Gates bought to repackage as PCDOS/MSDOS turned out to have been ripped off from CP/M? It was essentially an illegal fork of the code... that was proven in court later, you might want to try some web searches on this.
Actually, I regard that as just another anecdote. I've heard that he "didn't seem enthusiastic about it" or some such... but I don't think there's any way, realistically, that any of us can know what he might have said or done that might have have given the IBM guys that impression.
Once again, I think your perception of the history on this sounds somewhat off.
I'm not really sure anything in CP/M qualifies as massively inventive.
Quote; "CP/M on the other hand is based upon the Operating System for the DEC PDP-10, "TOPS-10", at least concerning file and device naming conventions, as well as for some command designations. Other influences are less clear, but undisputable."
There was indeed quite the same "look and feel" (or odd PDP logic - illegal UUO - unimplemented user operation (error - never got (really understood) that one):)
CC.
TaijiQuan (Huang, 5 loosenings)