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.'"

Comments

Yeah for the raccoons

[Pharmboy]

Gotta love the analogy with the raccoons. Sounds like a judge finally gets it.

Re:Yeah for the raccoons

[Rodyland]

As with most, inclined to agree, however I like this quote from the article:
In hindsight everybody says, 'I could've thought of that,'...

Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?"

I think this exposes a fundamental problem with the system - you have judges and lawyers deciding what is and isn't obvious/patentable. And I think that a swing too far in the opposite direction would be just as harmful as the (current) swing in the direction of extreme patentism (hah, I just made up a word). Of course, it'd be an interesting thing to behold.

Re:Yeah for the raccoons

[Ucklak]

Didn't think of it then because raccoons weren't a problem before.

Why should I pay someone for an idea I had just because they account for raccoons first?

There shouldn't be a patent for any specific pattern of 4 screws on a piece of material yet that is what the case is about.

Microsoft wants us to pay them for double clicking icons. What if a double click is an oops click?

I'll patent the process of unbuckling your seatbelt as you take the keys out of the ignition at the same time as I thought of it before I heard that it is a procedure that UPS mandates their employees use.

Who is right then?

Re:Yeah for the raccoons

[raehl]

Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?"

Because they didn't have a reason to think of it?

Or it uses new technology didn't exist when they last encountered the problem?

For example, good, free database software has recently become available, making it feasible for many people to apply databases to problems who didn't have that option before.

So does that mean the first person in any industry to become aware of database software should be able to get a patent on "Using a database to solve this problem"? No. And letting the first person to realize this obvious application of databases to patent it is BAD for EVERYONE.

Re:Yeah for the raccoons

[Pharmboy]

No matter where you "draw the line" in reference to what is obvious and what is not, SOMEONE will always get hurt. Absolute rules, while sometimes necessary, tend to do that.

I believe the goal is to set a rule that hurts as few as possible, and with the same number of people on both sides of the issue. The goal of any judicial system isn't perfection, just fairness.

Re:Yeah for the raccoons

[Harmonious Botch]

...it begs the question "how come you didn't think of it then?"

Because I wasn't being paid to design one.

Re:Yeah for the raccoons

[JourneyExpertApe]

Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?"

Isn't the whole point here that KSR did think of it, and they just thought it was too obvious to patent?

Re:Yeah for the raccoons

[raehl]

Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?"

Also, what about cases where the whole problem is someone else DID think of it? Or lots of someone elses thought of it?

If you patent something that 10 other people independently start doing, doesn't that kind of demonstrate that it was pretty obvious?

Re:Yeah for the raccoons

[dgatwood]

Indeed, the test of obviousness should be whether someone reasonably skilled at the art would have arrived at a similar solution given the same problem. If the answer is "yes", it is obvious EVEN IF THE PROBLEM ITSELF WAS NOT OBVIOUS OR COMMON. Of course, by this standard, 99% of patents should not be valid. 99% of patents should not be valid.

As for the question of why someone else didn't think of it first, I can't count how many patented designs I've seen and said "I can't believe they got a patent on that. I had that idea [n] years ago, but A. didn't have any financing to develop it, B. felt that the technology hadn't quite matured to the point that it was practical/usable, or C. didn't think there was a big enough market for it. Half the time, I've had somebody suggest the idea TO ME out of the blue, then said "hey, I thought of pretty much the same thing [n] years ago", THEN two or three years later, found out somebody turned it into a product and patented it.

Case in point: a music stand with an LCD panel. The reasons I didn't move forward with that were A. no money, B. no time, C. I thought it would be better to wait until digital paper became more readily available because LCDs were non-optimal for the task, and D. I didn't think I could start a company to manufacture such a product and sell enough to make it worth quitting a job that actually pays me money. It was suggested to me by someone out of the blue in 2001 or 2002. I'd thought of the idea in about 1999. It was obvious then, and even more obvious now, in 2006 when somebody finally built such a product, but I'd be surprised if they didn't have at least one or two patents on that breathtakingly obvious idea.

What they don't have (AFAIK) are the UI ideas I came up with for making it better... which might still be obvious... but... basically use an FFT to try to guess (even in the face of polyphony it should work well enough unless it's some weird 20th century piece with nothing more than a bunch of octave skips on a single tone or something) where you are in the piece and automatically turn pages. Okay, that's been done for solo instruments, but AFAIK, not for piano. Oh, yeah. I want this in a PIANO music rack. Music stands are cute, but a piano music rack would rock.

Anyway, back to what's cool about my version.... As an option, instead of turning the page, if so desired, the pages would slowly slide so that two pages are on screen at once with a third moving on and a fourth moving off. That way, you never lose track of where you are because the page is always almost exactly where it was before you looked up.

Another idea was to make this be wirelessly programmable via 802.11 (I'd probably pick Bluetooth if I were designing it now). Either that or cable it up with a FireWire cable so that a single cable provides power and data. Again, you'd need digital paper for that to be practical....

$10 says that somebody will design one with most or all of these features within five years and will successfully get a patent based on the idea. When it happens, feel free to use this post as proof that the ideas are all obvious (unless I create it, of course...).

Re:Yeah for the raccoons

[Macadamizer]

Indeed, the test of obviousness should be whether someone reasonably skilled at the art would have arrived at a similar solution given the same problem. If the answer is "yes", it is obvious EVEN IF THE PROBLEM ITSELF WAS NOT OBVIOUS OR COMMON. Of course, by this standard, 99% of patents should not be valid. 99% of patents should not be valid.

Just curious, why do you believe 99% of of patents should not be valid?

How do you propose to perform your test? If others "skilled in the art" already know that there is a solution, then you are injecting hindsight into the equation, and EVERYTHING is obvious once you have hindsight.

As for the question of why someone else didn't think of it first, I can't count how many patented designs I've seen and said "I can't believe they got a patent on that. I had that idea [n] years ago, but A. didn't have any financing to develop it, B. felt that the technology hadn't quite matured to the point that it was practical/usable, or C. didn't think there was a big enough market for it. Half the time, I've had somebody suggest the idea TO ME out of the blue, then said "hey, I thought of pretty much the same thing [n] years ago", THEN two or three years later, found out somebody turned it into a product and patented it.

The purpose of patents, as is oft repeated, is to advance the useful arts (whether it does a good job or not is not really the point here, though!). A patent, for better or worse, at least makes public the invention, so others can see it, benefit from it, and build upon it -- maybe not immediately, but eventually. If you don't bother to tell anyone about your inventions, or don't bother to publish papers or put up a webpage or whatever, then the public is not benefiting from your invention, so you are not entitled to a patent (under current law). Someone else who comes up with the idea, dilligently works to develop it, and then gives the knowledge up to the public IS entitled to a patent.

But just because you claim to have thought of something first doesn't make another's invention obvious. How do you prove that you came up with it first? Is the patent office or the courts just supposed to take your word for it?

If you really want to keep others from patenting something you invented "first," put up a webpage, publish a paper, let the world know about your "obvious" invention -- that's how you can do this. Coming back 10 years later when someone else is successful and sitting back and complaining that it was "obvious" because you invented it "first" doesn't do any good at all.

Re:Yeah for the raccoons

[chefmonkey]

I'm way too familiar with patents, and my experience is that the vast, vast majority -- I'm talking two to three sigmas here -- are issued not because someone thought up a novel solution to a problem, but because someone thought up a stunningly obvious solution to a newly emerging problem.

It's too late for those patents that have made it out of the gate already, but I have long held that there should be a small pool of engineers -- you could probably even find people do do it on a non-paid volunteer basis -- who were involved in the patent process in a very specific, blinded fashion. The way it would work is: as part of the review process, the patent reviewer would state the problem the patent was trying to solve as an unsolved problem. This problem would then be sent to one or more of these engineers. The engineers would consider the problem, and have a short period of time to submit one or more potential solutions that solve the problem. If any of the potential solutions substantially replicates the claims of the patent under review, it would be rejected as obvious.

Sadly, this makes *way* too much sense, so I doubt it would ever be seriously considered by the USPTO.

Re:Yeah for the raccoons

[Dun Malg]

How do you propose to perform your test? If others "skilled in the art" already know that there is a solution, then you are injecting hindsight into the equation, and EVERYTHING is obvious once you have hindsight.

The test is not as difficult as you seem to think. Stating that "everything is obvious in hindsight" is a largely meaningless handwave that tars all subjects with one brush, as both the obvious AND non-obvious fit the description. In these cases, hindsight actually helps. For example, the Post-It note seems obvious, yet people went around scotch taping, paper clipping, or pinning slips of paper to things for decades beforehand. Clearly not obvious, otherwise there'd have been an earlier example. On the other hand, you have patents on portable electronic devices for sending and receiving email--- that's bloody fucking obvious, and not just in hindsight. Portable email was not a solution waiting for an insightful genius to discover it, but a solution waiting for technological progress to make it feasible.

Re:Yeah for the raccoons

[Macadamizer]

On the other hand, you have patents on portable electronic devices for sending and receiving email--- that's bloody fucking obvious, and not just in hindsight. Portable email was not a solution waiting for an insightful genius to discover it, but a solution waiting for technological progress to make it feasible.

If this is your test for obviousness, then NOTHING is patentable, because everything is just "a solution waiting for technological progress to make it feasible." Fortunately (or unfortunately, depending on your position in this matter), our patent system doesn't just look at "ideas," it looks at the idea plus a "reduction to practice" -- in other words, the guy that says "I wish I could take my email with me" doesn't get a patent, but the guy that actually figures out HOW to do it does. We give patents based onthe invention of the "technological progress" that makes the solutions feasible.

As noted in another post, the first NTP patent was filed in 1991 -- was a portable device for email "bloody fucking obvious" in 1991?

(BTW, just for the sake of disclosure, I have no love for NTP, and actually wrote a brief in support of RIM at the CAFC, and think RIM got fucked -- but not because of NTP's patents being obvious, but for other reasons, specifically the extraterritorial application of U.S. patent laws.)

Re:Yeah for the raccoons

[shawb]

Honestly, guessing what solutions to a problem exist wouldn't be a good use of engineers. It WOULD be a good use of engineering students, though. This exact task would make an extremely appropriate internship. The difficult part would be in phrasing the problem such that it isn't too vague, yet it isn't steering the students directly towards the patent.

Re:Yeah for the raccoons

[chefmonkey]

That's why I proposed a short period of time: if even 0.1% of the engineers out there can immediately think of the same solution, then it's obvious for the purposes of the patent system.

Patents theoretically promote innovation by encouraging people and companies to invest significant resources into solving problems. At 0.1% of the engineering population, you're pretty much guaranteed that, once the problem comes to light, the fact that tens of thousands of people would be able to solve the problem means that patenting the idea doesn't serve the common good: because, statistically speaking, several companies will have employees all equally capable of solving the problem, several companies will. Allowing patents to be issued for those kind of "inventions" doesn't promote anything useful at all.

Re:Yeah for the raccoons

[Copid]

If this is your test for obviousness, then NOTHING is patentable, because everything is just "a solution waiting for technological progress to make it feasible." Fortunately (or unfortunately, depending on your position in this matter), our patent system doesn't just look at "ideas," it looks at the idea plus a "reduction to practice" -- in other words, the guy that says "I wish I could take my email with me" doesn't get a patent, but the guy that actually figures out HOW to do it does. We give patents based onthe invention of the "technological progress" that makes the solutions feasible.

If everybody has the same obvious idea and you're the first one to figure out how to implement it, you should get a patent. On the implementation. Example: Everybody wants a portable device that can receive email. No portable network hardware is available. Portable network hardware becomes available from a third party and you're the first slob to crank out an email device with the network hardware in it. Should you get a patent on how you hooked together the parts? Maybe, if it's sufficiently clever. Should you be able to patent the general idea that everybody has been chomping at the bit to implement? I certainly don't think so.

Re:Yeah for the raccoons

[shaitand]

"Just curious, why do you believe 99% of of patents should not be valid?

How do you propose to perform your test? If others "skilled in the art" already know that there is a solution, then you are injecting hindsight into the equation, and EVERYTHING is obvious once you have hindsight."

99% is a made up number that any reasonably thinking individual can assume means "nearly every patent" when used in that context. However, you have established where he got the idea with the second paragraph. I trust that nobody is foolish enough to think that there are no exceptions where something is NOT obvious in hindsight, so you yourself surely must have meant 'almost everything'.

If something is obvious in hindsight then it is just a progressive step built upon the existing state of invention. Progressive steps are not truely innovative things that are worthy of patents. The reason is that sooner or later someone else would have made that step. Granting patents on things that would be discovered and become available to the industry without patents hinders forward progress rather than helping.

The standard for a patent should not be whether or not effort went into coming up with a solution. The standard for a patent should be whether or not any other human being would have ever come up with that solution withen the length of the patent. Patents are a government granted monopoly and should not be granted on a daily basis!

There are probably only a couple dozen patents that should have been granted this century.

Re:Yeah for the raccoons

[WolfWithoutAClause]

Someone else who comes up with the idea, dilligently works to develop it, and then gives the knowledge up to the public IS entitled to a patent.

No, because somebody can patent the idea before that, even if they haven't managed to get it to work. Then when some poor sod does manage to do that, they can't produce the product, and in some cases all working copies get transfered to the patent owner. The patent owner owns the idea lock stock and barrel until the patent runs out.

Re:Yeah for the raccoons

[Kadin2048]

The problem that I can see is that if you eliminated patents altogether, it might lead companies to be very, very aggressive about preventing the disclosure of trade secrets. Working for an electronics firm would be like joining the Manhattan Project, and every device you bought would have all of its circuit boards potted in epoxy, mixed with iron filings to mess up X-rays and PET scanners. They'd probably also self-destruct if you opened the case. Industrial espionage would be de rigeur.

In short, a world without patents could be a pretty ugly place. I could easily see a future where ideas were locked up for longer, and less accessible to the public at large, due to trade secrets and the precautions taken to protect them, than under a sane patent system.

That said, the current system is hardly sane. First, the terms are far too long. Right now, patents for some of the earliest computer developments are just expiring; hey, anyone want to implement the ISA bus? You can go right ahead now! That doesn't do anyone a whole lot of good. Patent terms need to be made more flexible depending on the field. Drug patents are probably good at 10+ years, because of the large sums of money and long regulatory approval processes required before they can turn a profit (although in a perfect world, we'd streamline those processes too). Patents on electronic devices probably shouldn't be any longer than 5 years at the outside. Algorithms and software shouldn't be patentable, except in narrowly defined circumstances where they form part of a patented device, but even then are not protected independently.

So in short, there are valid reasons for the existence of the patent system. It's better to have some public control in the marketplace of ideas; if you didn't have a patent system, it wouldn't just become this free and open love-fest, you'd just be handing over control of the whole system to the corporations themselves.

Re:Yeah for the raccoons

[Chandon Seldon]

That's actually a really good criteria for patents: If you can duplicate the item without reading the patent, the patent isn't benefiting society. The other important rule would be: If you can't duplicate the item by reading the patent, the patent is fraudulent.

Re:Yeah for the raccoons

[Dun Malg]

If this is your test for obviousness, then NOTHING is patentable, because everything is just "a solution waiting for technological progress to make it feasible."

Bullshit. What technology were Post-Its waiting for? Or better yet, the high pressure McCoy automatic oiler, which used tech no more advanced than the steam engines it served? Steam engine parts were oiled by hand with oil cans for 20 years before the automatic oiler was invented.

As noted in another post, the first NTP patent was filed in 1991 -- was a portable device for email "bloody fucking obvious" in 1991?

Jesus, if anything is bloody fucking obvious, it's the observation of "man, I wish it were possible to make one of these things that was portable." The list is unbelievably long: phones, video cameras, calculators, TVs, radios, DVD players, and yes, even networked computers running a mail reader! Just because it took time for large LCDs, low power CPUs, and high capacity batteries make it possible to finally run that email app on a goddamn 2-way pager does not make it non-obvious before then.

Re:Yeah for the raccoons

[dgatwood]

As noted in another post, the first NTP patent was filed in 1991 -- was a portable device for email "bloody fucking obvious" in 1991?

I didn't even have non-portable email in 1991. So from that perspective, it was not at all obvious. On the other hand, it was also something for which a concrete implementation was not technologically feasible at the time.

But the patent isn't on the idea of doing email wirelessly anyway. It's on what amounts to UUCP, except sending data to a wireless email reader instead of sending it by telephoning some other computer in another state. It's a patent on a design that in similar (but not identical) applications had been in common use since the 70s (at least). Indeed, the RIM patent gives new meaning to the word obvious once you dig beneath the superficial red herring question of whether wireless email was obvious in 1991....

Re:Yeah for the raccoons

[gnasher719]

'' Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?" ''

Who says nobody has ever thought of it? I have a question: Have you ever thought of painting your shoes yellow? Probably not. On the other hand, if you went to a fancy dress party and needed yellow shoes to match your costume, then you would do exactly that. Are you saying that painting your shoes yellow could be patented because nobody thought of it before? That's nonsense. It is obvious, whether anyone thought of it, whether anyone wrote it down, or not.

Re:Yeah for the raccoons

[tinkerghost]

Obviously that is rubbish, prior art is covered seperately in the requirements for a patent, and not treating obviousness as something differet then what is currently the norm is showing some very serious disrespect for those who wrote current patent law. The people who wrote it were really not as stupid as to mention the same requirement twice.

The patent law says that it is not patentable if someone reasonably skilled in the art, would develop the same device given the same motivation. Since the judges who have to rule on these things are not "reasonably skilled in the art" for which they have to make determinations, they developed the test of "teach, suggest, motivation". The law as written is designed to make sure that obvious solutions to problems don't get patented. The "teach, suggest, motivation" test was developed as a practical way to implement that. The problem is that it doesn't. It lowers the bar to the level of a clueless moron, looking at the whole of the prior art.

I agree that the motivation portion of the test is valid. If there has been a problem, with repeated failed attempts at a solution, over the course of years, then the solution is not obvious, no matter how simple it is in practice. (Encasing batteries in a metal housing to prevent leakage is the example given in the transcript - a 20 year problem with a stupidly simple solution.)

The "teach, suggest" part of the test is just a restatement of prior art. "If the body of prior art teaches or suggests a solution, it is obvious, otherwise it is not." Transferring the "genre, artist, album, song" hierachy menus from a computer's jukebox program, to an MP3 player that has a graphical display fails this test for anyone reasonably skilled in the art of interface design, and yet the patent was granted to MS.

How do you fix it so that solutions that are "obvious to someone reasonably skilled in the art" can be shown to be obvious to people not skilled in the art? I have no ideas. I just know the current method doesn't work.

Re:Yeah for the raccoons

[SillyNickName4me]

I agree that the motivation portion of the test is valid. If there has been a problem, with repeated failed attempts at a solution, over the course of years, then the solution is not obvious, no matter how simple it is in practice. (Encasing batteries in a metal housing to prevent leakage is the example given in the transcript - a 20 year problem with a stupidly simple solution.)

The motivation part is important, sure. However, saying that if people have been looking for a solution for decades, and only now someone 'found' a solution is not a good test because it does not account for the often occring sytuation where not all technology required exists untill now. The underlying technology might be a candidate for a patent of course, thereby inspiring others to come up with an alternative.

With the battery example, a metal cover should not be patentable, but a specific way to make that etal covering might well be patentable.

The "teach, suggest" part of the test is just a restatement of prior art. "If the body of prior art teaches or suggests a solution, it is obvious, otherwise it is not." Transferring the "genre, artist, album, song" hierachy menus from a computer's jukebox program, to an MP3 player that has a graphical display fails this test for anyone reasonably skilled in the art of interface design, and yet the patent was granted to MS.

Hence my statement that people arguing that obviousness equals prior art + documented motivation to combine that prior art, are acting as if those who wrote the law are a bunch of idiots who did not realize they wrote the same thing twice. That this line of thought is invalid should really be obvious.

How do you fix it so that solutions that are "obvious to someone reasonably skilled in the art" can be shown to be obvious to people not skilled in the art? I have no ideas. I just know the current method doesn't work.

The problem is that you can't in many cases. Someone not skilled in the art does often not have the experience to understand how the solution is obvious.

If you want patents and don't want a 'first to file regardless of inventiveness' situation, you HAVE to use experts to determine the validity of said patents, and judges are not those experts, they are experts in entirely other things, and there are very good reasons why we leave certain kinds of decisions to them, but techical validity of a patent should not be one of them.

Obligatory Bitch

[overshoot]

I wonder how many people posted this one before it got accepted? After all, it only happened two freaking days ago with months of notice. It's so old the stories were in print papers yesterday, and the GrokLaw newspick that announces the official transcript [1] scrolled off the main page yesterday.

I used to read /. for breaking news. Now it's just windy.

[1] Courts are not known for haste in posting official transcripts. /. is, apparently, quite a bit slower.

Depends on how they write the rule.

[raehl]

The problem with a lot of these obvious patents isn't whether the invention was obvious or not, but whether the patent is an invention at all.

A cotton gin is an invention, and should be patentable. Mechanically removing seeds from cotton is a problem, and shouldn't be patentable.

The judge just proved he doesn't understand

[chopper749]

Things are designed a way for a reason. The sensor is at the bottom to detect anything on the ground that would interfere with the door coming down. If you move the sensor to the top, it is now useless, and is also in violation of most, if not all, building codes.

Wrong complaint

[dereference]

I'm no apologist, but indeed it was covered two days ago, and even before it started six months ago. If you're going to complain, you might want to focus on the fact that--if anything--it's a dupe, and in no way is it a piece of ignored old news as you suggest.

Re:Because of Submarine patent trolls

[vertinox]

Strikes me as true, and as always when claiming something is obvious, it begs the question "how come you didn't think of it then?"

Well most of these people actually do think of the solution and actually create a working product, but then a Submarine Patent Troll comes out of the woodwork telling them that their actual invention violates their vague patent that they never bothered to bring to market or tell anyone else about.

That is the key problem here... Not that it is just obvious, but they are going after people who do come up with the idea themselves rather than those who have stolen the idea from them.

Re:Because of Submarine patent trolls

[Rodyland]

I think you have nailed the current problem - the patent trolls who patent things that others have done but didn't think it was patentable/worth patenting. Of course, prior art should invalidate the patent, but that only works if you've got the money to pay for a lawyer, which brings me back to what I said above, and what appears to have been ignored. The problem with the system is the requirement for judges and lawyers to make decisions that they are seemingly not qualified or able to make.

Shameless plug

[RareButSeriousSideEf]

Fantastic suggestion, IMHO. I gotta plug this concept, even though I've had time to do little besides registering the domain...

Taxonomy of Obvious Ideas
http://tooi.org/

Similar idea to what you suggested, except that it doesn't restrict the repository to patented ideas. My goal is to help propel "ideas" -- and combinations thereof -- into the public domain or some free licensing scheme. If such a thing were done right & had significant mindshare 10 years ago, I doubt there would be a One-Click patent, or a patent on being able to rewind & fast-forward streaming music, etc.

Ultimately, I need to find a few people significantly smarter than myself (and more informed in a number of critical areas) to make this work.

Re:Because of Submarine patent trolls

[vertinox]

What is a "submarine patent troll?"

http://en.wikipedia.org/wiki/Patent_troll
http://en.wikipedia.org/wiki/Submarine_patent

Yes they both have extensive articles on Wiki. Although I may have taken the liberty to combine the two termns, but if you really don't know... Read the articles.

The point is that Patent system doesn't require you to actually make an invention, but rather have a description on what these invention does. These things can often be very vague and people have been known to patent the wheel on occasion shows a big flaw in the Patent system.

If I can patent the wheel with vague wording, what does that mean as far as patenting devices that may come into use by some other company?

It isn't that hard to think of something to patent that someone might do since it the idea would be obvious. That is why this reason why it is being brought before the SCOTUS.

He didn't do it on a computer

[stinerman]

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.

Ahh, this is quite obvious, but what about putting it on the upper hinge USING A COMPUTER? Doing any mundane thing is magically nonobvious when you're using a computer or doing it on the Internet.

Re:Because of Submarine patent trolls

[Anonymous Coward]

Oh, shut up. Patents are written by engineering school washouts who couldn't manage to do real innovation but figured they could get through law school. They're reviewed by government pencil pushers that couldn't manage to get a job doing real engineering work, so they sit and read legal gibberish all day. They're overseen by clueless judges, politicians and career bureaucrats who have no clue about anything technical.

It's a huge, bloated echo chamber of people who one-up each other in arguing just how low they can set the "obvious" bar. The whole patent industry is a self-serving cycle of money grubbing for royalties, filing fees and expanding government fiefdoms, driven by the refrain: "The world is filled with nothing but idiots! Nothing is obvious except in hindsight! Rubberstamp the application now and keep the money rolling in!!!"

Everything is obvious to someone. Most don't care.

[NotQuiteReal]

There is nothing new under the sun but there are lots of old things we don't know - Ambrose Bierce

Just because someone patents a "non-obvious" idea, doesn't mean that it is new. It may have been thought of before, but not thought important enough to patent.

I think geeks in particular like to cry "That's obvious", because it is... but since geeks aren't "sleezy marketers", they don't rush out and patent things. (Hey, don't knock marketers, we need them to sell crap. I don't want to sell crap. I want to make stuff.)

In other words, one's personality has as much to do with patentability as obviousness.

Lots of smart people think of stuff and do nothing. Some folks think "pet rock" and market the hell out of it.

I have, on more than one occasion, come across "new" ideas in SF novels that I invented. Again, independent invention does not mean "new".

I had a philosophy teacher once describe a scale of "complexity"... at the bottom was straightforward stuff like Math. Up the scale you had other natural phenomena, up thru quantum physics and the like. At the top of the scale of complexity was "human organizations" - politics and the like.

Patents, law, etc - All in this category. "Artificial", and harder than hell for rational geeks to deal with. That's why it is such a hot button.

It's looking good that the CAFC will be reigned in

[mavenguy]

Standard disclaimer: I'm not a lawyer, less a Supreme Court expert, but I am a former patent examiner.

The the definitive previous case by the SCOTUS on the interpretation of obviousness is GRAHAM v. JOHN DEERE CO. in which the Court basically concluded that the 1952 enactment of section 103 of the patent statute was basically a codification of a line of judicial opinions going back into the 19th century (with the exception of a 1941 Supreme Court opinion that appeared to introduce a "flash of genius" test that the new law seemed to overrule in the last sentence of section 103). The "test" that this article mentions is the "suggestion" and "motivation" showings that the Court of Appeals for the Federal Circuit (CAFC) and its predecessor, the Court of Customs and Patent Appeals (CCPA) developed since the Graham decision was handed down in 1969.

The CCPA only controlled appeals from the PTO, which, of course, affected what claims would be allowed. When the issued patents were challenged by accused infringers, the appeals were decided by the regular Federal Circuit courts, which didn't follow the CCPA. In 1982, responding to complaints from patentees that the law was not uniformly applied the CAFC was formed by merging the CCPA with another court and was given exclusive appellate jurisdiction for all patent appeals, and they took their view of obviousness with them.

Now, usually the SCOTUS is pursuaded to review areas of law where there is a diversion of opinions on the law among the various federal circuits; here, there is, by the exclusive CAFC jurisdiction only one, yet the case was selected for review. I haven't seen a transcript of the hearing; it is still possible that the CAFC's "suggestion/motivation" test will survive and this case will be decided narrowly on the facts of the case, but it looks like, even if they do survive it will be in a less severe form than has been.

However, even if they strike down the CAFC's standard I don't think there will be a big impact on the quality of patents being issued, other factors being equal, since the main problem is the often that the prior art made of record is inadequate. Nevertheless, it would be easier to make sustainable rejections, since more prior art references will be available.

Game Boy

[tepples]

A more non-obvious innovation would be to find a use for a wireless computer that doesn't involve e-mail.

Amateur packet radio, 1981. Schumacher CAT radio-controlled car, 1986. Nintendo Game Boy compact video game system, 1989. A wireless replacement for the Game Boy's two-player link cable would have been the obvious idea.

Sensors -- apparently not obvious to most here.

[AJWM]

The sensor is at the bottom to detect anything on the ground that would interfere with the door coming down. If you move the sensor to the top, it is now useless

Above there are a least a half-dozen posts saying the equivalent.

The obvious-to-me solution is to set angled mirrors at the bottom so that the light path (breaking which trips the sensor on most garage doors I'm familiar with) is still at the bottom, but parts edible by raccoons (wires, plastic sensor housings, etc) are not.

I'd patent that except that the fact that a half-dozen slashdot posters can't figure it out is no indication of non-obviousness.

(And yes, lining it all up is tricky, but there are gadgets for helping line up optical systems that go back to homebuilt gas lasers (mid 1960s) and amateur telescopes (hundreds of years?).

Re:The drugs like me

[jZnat]

By not spending billions on marketing? I'm pretty sure pharmaceutical companies spend more on marketing (e.g. getting your doctors to recommend their new pill/injection/vaccine/cream) than R&D, but don't quote me on that.