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Supreme Court to Rule On 'Obvious' Patents
vocaro writes "The U.S. Supreme Court appears ready to rewrite the standard of what makes a patent 'obvious.' In a case before the court, brake manufacturer Teleflex is accusing a rival, KSR International, of violating its patent on a brake assembly. Large patent holders, including Microsoft, IBM, and Cisco, have submitted briefs supporting KSR, saying that true innovators can have a patent held up against them that reflects nothing more than an obvious combination of preexisting elements, then be told they have to leave the market or pay royalties. The court appears to be on KSR's side, saying that Teleflex's invention would have been obvious to an individual of reasonable skill. During oral arguments, Justice Breyer observed, 'It looks to me at about the same level as I have a sensor on my garage door at the lower hinge ... and the raccoons are eating it. So I think of the brainstorm of putting it on the upper hinge.'"
Perceptive post.
Making it no longer necessary for patents to be non-obvious?
Since there is already a statute that requires patents to be nonobvious -- 35 U.S.C. 103 -- it's unlikey that the courts are going to go in this direction.
Shifting the burden of proof so that the patenter (not the alleged infringer) has to prove that the patent is non-obvious? I thought this was legally the status quo, though the quality of some patents would suggest practice differs for software...
Once a patent is issued, it is presumed valid -- which means, it is presumed to be patentable subject matter (35 U.S.C. 101), novel (35 U.S.C. 102), nonobvious (35 U.S.C. 103), and enabled (35 U.S.C. 112). It is up to the person challenging the validity to show why a patent isn't patentable, isn't novel, is obvious, or is not enabled.
I guess they could be trying to move away from the presumption of validity, in which case a patent owner would need to prove that the patent WAS valid in order to assert the patent (the opposite of what we have now). Maybe that's the way we want to go, to a European-style patent system. Personally I don't think it's the right way to go, but what do I know.
Replacing the test with one that better accomplishes the same goal? (Somewhere there must be details of how this is tested, and they're not good?) I guess this seems most likely, given this quote: "I would say its [the lower court's?] test is meaningless," said Scalia. "It doesn't add anything to the question, 'Would a person of ordinary skill in this field have conceived of this idea?' "
To show that an invention is "obvious," you need essentially need to show one or more pieces of prior art that, in combination, "anticipate" or disclose the invention seeking to be patented, and you must show some "motivation to combine" the art into a single invention. The criticisms typically focus either on the fact that the art must meet the standards for prior art -- which usually means a written record -- or that the motivation to combine factor is too nebulous.
It is a tricky test; however, the test is an attempt to balance "hindsight" against wha is truely obvious. The problem is, almost every invention is "obvious" in hindsight -- the current obviousness test is an attempt to weed out hindsight.
"That's not even wrong..." -- Wolfgang Pauli
when claiming something is obvious, it begs the question "how come you didn't think of it then?"
Because whether or not I "thought of it" has nothing to do with whether or not it's obvious.
If I walked up to ten random people and said "When it rains, water floods the ditch where I keep my TV and ruins it, what should I do to keep the TV safe?" How many of them do you think will say "move it somewhere else!" Does the fact that they never had to save a TV that was in the middle of a ditch or had their TV short out in the rain make the answer any less obvious?
If I have been able to see further than others, it is because I bought a pair of binoculars.
It's not really a dupe. You see, last time the "news" was that news.com was running a story about the case. This time, the "news" is that embedded.com is running a story about the case. The case itself is hardly news -- it's been around since April of 2005. Well, the real case is still older, but that's when they appealed to the Supreme Court.
Next week, it'll be news again -- and with a lot of luck they might find a link that's actually informative. Then again, that page has been around since June, so it's hardly news. Maybe coverage of the recent arguments would really be better. Oh wait...that's only a blog entry, undoubtedly written by some left wing nutcase. Maybe by next week, we can get a highly informed piece from a legitimate news service instead.
What, me sarcastic? Nevvvvverrrrrr!
The universe is a figment of its own imagination.
* (( in my mind, the current test, is really just a reformulation of the 'novel' test, because if you can prove that it isn't novel (new), then it won't pass the current 'obvious' test, and if you can prove it doesn't pass the 'obvious' test, then you've just proved that it's not 'novel'.))
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
EVERYTHING is obvious once you have hindsight
But there's still an important difference between "obvious" and "obvious in retrospect". In both cases, an expert will respond "Oh, of course" upon hearing the solution, but only in the second (i.e., deservedly patentable) case will said expert go on to exclaim "Why didn't I think of that?"
Comment removed based on user account deletion
Since I've seen plenty of articles on this, but none describing exactly what's at issue in this case, I did some searching and found this link to the Petitioner's Brief. [PDF Warning]
Apparently, an old patent existed for adjustible gas pedals, such that the pedal could be moved to suit the size of the driver. Additionally a second patent existed for a gas pedal which was linked to an Electronically Controlled Throttle (ECT). Teleflex then apparently patented a brake pedal which used a combination of the two technologies, which is, I think, about as obvious as it gets, and then sued KSR Int'l for infringement.
I also found this NYT article on the subject, which explains the case, and how such idiotic patents are allowed to stand.
https://www.eff.org/https-everywhere
If a job's not worth doing, it's not worth doing right.
You've just described how the European Patent Office works. In fact, there is even an additional period where, after the examing board finds your patent to be valid, your competitors can file an opposition brief and show up to provide counter-evidence to a board with a scientific/engineering background in the general area. I've done it, and it was night and day compared to dealing with the US examiners I've had to deal with.
We have modified the patent system in the recent past, we finally did away with "first to invent", and went to "first to file" like the Europeans, so maybe there is hope.