Slashdot Mirror
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.'"
Gotta love the analogy with the raccoons. Sounds like a judge finally gets it.
Tequila: It's not just for breakfast anymore!
Uh no.. Will Slashdot lose its patent on dupes?
Too late dude, I already patented that.
licet differant, aequabitur
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.
Lacking <sarcasm> tags,
Here I believe "the test" refers to the one mentioned earlier: "accepted test for showing that the plaintiff [patenter?]'s invention would have been obvious to an individual of reasonable skill." I'm not quite sure what the article means by seeing the test "done away with":
I think the article is crap. Legal arguments are quite nuanced, and it seems like the writer has removed too much context to really understand what the Supreme Court Justices are saying in these quotes.
Hopefully, the court won't go so far as to create a new standard, just rule that the current one is not Constitutional. That would force Congress to write a new patent standard, which is who should be deciding the issue. Patents haven't become high viz enough to be a campaign issue, but I'd love to see an advisory panel of both industry and academic representatives formed to create a better system, and then have Congress vote on that.
http://bgcommonsense.blogspot.com
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.
paintball
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.
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.
"I am the king of the Romans, and am superior to rules of grammar!"
-Sigismund, Holy Roman Emperor (1368-1437)
I am the lawyer representing Procyon Lotor and instruct you to cease any and all mention of his "Top Hinge Detectomatic Mechanism" in your case. My client is the sole innovator of this device and trust that you will respect his pending patent.
Yes we have prior art in the form of a maple limb which you will see was chewed in precisely the same manner as said invention.
Sincerely,
Miguel Sanchez
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.
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.
Pi Ran Out
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.
What is a "submarine patent troll?" The 1995 Amendments to the patent laws pretty much ended the endless continuation practice that Lemelson, the original "submarine patent guy" used to his advantage.
BTW, patents are public record -- they are all publicly available on the USPTO website. Should a patent holder have to go out and notify any potential infringers before they begin developing a product?
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.
How do you propose we sort out the "true" infringers who are "stealing" an idea from those who came up with the idea independently? What test to you propose to determine what independent development is? How far "back" in the development stream do you need to go to show "independence?"
"That's not even wrong..." -- Wolfgang Pauli
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.
"I am the king of the Romans, and am superior to rules of grammar!"
-Sigismund, Holy Roman Emperor (1368-1437)
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.
I know exactly what both are. Submarine trolls may have been an issue at one point (see my earlier post), but are really not an issue any more. Even the wikipedia article is clear on that. My point was basically that submarine patents aren't really an issue any more (if they ever really were), and certainly aren't a reason now to mess with the obviousness standard.
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.
You do realize that the wheel patent was in Australia, right?
Yes, sometimes weird things do get through the patent office. But consider this -- there are many thousands of patents filed every week with the patent office. The patent office is a profit center -- they bring in far more money than they have a budget -- but congress siphons off most of the patent's office revenues for other projects, and leaves the patent office with far less staff and resources than they would have if congress left the patent office to support itself. Generally speaking, the patent office does a pretty good job with what it has.
As far as the requirements for a patent go, a patent must make an "enabling disclosure" -- in other words, one of "ordinary skill" in the relevant art must be able to take the patent and, without "undue experimentation," practice the patent. What is sufficient to provide an "enabling disclosure" is different from art area to art area, and different from invention to invention -- but it is not generally true that a vague and hand-wavy disclosure is sufficient to result in an issued patent. It may happen sometimes, but it doesn't seem to happen very often.
And when it does, such patents can be successfully challenged in court.
"That's not even wrong..." -- Wolfgang Pauli
* (( 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.
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.
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!!!"
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.
This issue is a bit more complicated than you think.
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.
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
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.
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?).
-- Alastair
I for one welcome our lower hinge sensor eating raccoon overlords.
--
BMO
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.
'Yes, firefox is indeed greater than women. Can women block pops up for you? No. Can Firefox show you naked women? Yes.'
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.