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USPTO Decides To Lower Obviousness Standards
ciaran_o_riordan writes "Anyone who feels that patent quality is just far too high nowadays
will be glad to hear that the USPTO has decided to ditch four of their
seven tests for obviousness. Whereas
the 2007
guidelines said that an idea is considered obvious if it consisted of
'[predictable] variations [...] based on design incentives or other
market forces' or if there was 'Use of a known technique [prior art]
to improve similar devices (methods, or products) in the same way,'
the new
guidelines do away with those tests. The classic
'teaching-suggestion-motivation' test is still there, with two others. For
software developers, silly patents
are not
the main problem, but they certainly aggravate the matter. As
described in one patent
lawyer's summary, this change will 'give applicants greater
opportunities to obtain allowance of claims.'"
Pay me!
first post...HA...how obvious is that?
The mind conceives, the body achieves, the spirit manifests.
The 2007 guidelines were needed after KSR v. Teleflex . It seems the USPTO is now trying to push back against that ruling.
Toll booths, copyright extensions, we've all got to keep up our revenue streams. There's no more land to claim a stake in, so we must turn to ideas.
Finally I'll be able to push through my patent on toroidal 3-manifolds for use in manufacturing and everyday use. Then I can sue absolutely everyone in the world. Bwahhhhhh
So let me get this straight...
USPTO is already rubber stamping stupid patents a mile a minute, and now they're making it easier for even MORE crap to come out?
Or are they just making it *harder* for that crap to be shot down in court?
I can see why someone might think patents are a good idea. You spent effort inventing something, so you don't want someone taking your idea and your customers (by offering it cheaply due to smaller R&D costs). In return for a temporary monopoly, you reveal how your invention works.
The thing is, these days, with so many high-tech specialized niches, anyone who wants to make use of your patented idea would need to be an expert anyway. I'm pretty sure I wouldn't be able to understand any of the patents behind modern CPUs for instance, unless I spent an awful lot of time reacquainting myself with electronics. In other words, you need to invest in a form of R&D to be able to gain anything from reading a patent. Now, experts in various fields tend to know what is going on in those fields. They know what the hot research topics are, and what kinds of designs people are thinking about. In that sense, everything in that field is obvious to them. It's just a matter of time before someone actually gets xyz algorithm/design to work. Should we really be rewarding the firms with the fastest lawyers?
Climate Scientists and the IPCC are immune to this sort of regulatory capture, moral hazard, mis-aligned incentive driven corruption.
This is true for government agencies, churches, schools, the FED, the bean counters and legal at your company, hospitals, reporters, it's true in all facets of human life, but if you suggest these same forces happened naturally at the IPCC or by climate scientists, then you're modded down as a conservatard anti-science denier.
For those of us that don't want to read through the Federal Register, here's a summary of the current obviousness tests. I don't believe the removal of these tests will make it easier for patents to pass the obviousness bar; rather, this seems more like an effort to consolidate burdensome caselaw. http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html
this is the solution of this problem. there were fools who were still defending the system with various excuses. but see, it gets worse everyday.
and no. it being a bureaucracy or controlled by government doesnt matter. private or public, SOMEone will have to control and grant patents. and, it will eventually end up like this. in fact, if it was private, the situation would be much worse by now, since private corporations are easily dominated by their relevant interest parties, as we have seen from the financial rating agencies' role in wall street scam.
Read radical news here
give applicants greater opportunities to obtain allowance of claims.
WTF is that even supposed to mean?
More lawyers fees for everyone -- you pay more and the lawyers receive more.
Market stimulus in action.
Every mans' island needs an ocean; choose your ocean carefully.
...over and over again. Remember: patents also block independent development.
So often your competition has arrived to the idea independently and hasn't had "smaller R&D costs" anyway.
This happens especially often in the software industry, where the ideas are a dime a dozen (I mean: Amazon one-click? Hello?). So it just becomes an instrument to block the smaller competitors out of the market. Or an instrument for otherwise useless lawyer firms to prey on innovation, costing us all more than it should.
Parasites, I'd say.
This 2010 KSR Guidelines Update highlights case law developments on obviousness under 35 U.S.C. 103 since the 2007 decision by the United States Supreme Court (Supreme Court) in KSR Int’l Co. v. Teleflex Inc.
and
Comments concerning this 2010 KSR Guidelines Update may be sent by electronic mail message over the Internet addressed to KSR_Guidance@uspto.gov, or submitted by mail addressed to: Mail Stop Comments–Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 223131450. Although comments may be submitted by mail, the Office prefers to receive comments via the Internet.
Although I don't think the typical slashdot response to patent law issues is going to do much to persuade anyone. Might want to brush up on your patent law before you comment. This article might help a bit.
Although the other rationales discussed in the 2007 KSR Guidelines are not the focus of separate discussions in this 2010 KSR Guidelines Update, it will be noted that obviousness concepts such as applying known techniques, design choice, and market forces are addressed when they arise in the selected cases. The cases included in this 2010 KSR Guidelines Update reinforce the idea, presented in the 2007 KSR Guidelines, that there may be more than one line of reasoning that can properly be applied to a particular factual scenario. The selected decisions also illustrate the overlapping nature of the lines of reasoning that may be employed to establish a prima facie case of obviousness. Although the 2007 KSR Guidelines presented the rationales as discrete, self-contained lines of reasoning, and they may indeed be employed that way, it is useful to recognize that real-world situations may require analyses that may not be so readily pigeon-holed into distinct categories.
Not only do they not say that they're getting rid of the seven KSR rationales, they actually reinforce the idea that examiners don't even necessarily have to use one of the seven rationales when making an obviousness rejection, as long as they can express their rejection in a way commensurate with the Supreme Court's reasoning in KSR.
The only reason that the other four rationales aren't discussed in any great detail in these guidelines is because the Federal Circuit hasn't released any decisions invoking those rationales since KSR.
I would not say that all patents need to be abolished, but rather than we need to reform the patent system so that it best serves society. Society is not best served by a system that grants patents on abstract math (which, when you get down to it, is exactly what a patent on an algorithm is), business methods, or gene sequences. Let's bring the patent system back in line, and only grant patents on machines or materials, and only in cases where a sufficiently high level of innovation can be demonstrated.
Even if you are an advocate of software and gene patents, the system as it is now needs reform -- there are so many patents that it is now less likely than not for a new product to violate one. We need fewer patents, much fewer, to the point where only a negligent inventor could unknowingly be in violation.
Palm trees and 8
There are far too few idiotic patents submitted nowadays. These elitist barriers of entry have to stop!
It's not like they weren't ALREADY rubber-stamping approval of patents which e.g. apply a known technique to improve similar products. This just formalizes their actual practice.
nuff said
Not only do they not say that they're getting rid of the seven KSR rationales, they actually reinforce the idea that examiners don't even necessarily have to use one of the seven rationales when making an obviousness rejection, as long as they can express their rejection in a way commensurate with the Supreme Court's reasoning in KSR.
Yep. I'm not sure if the article poster was simply freaked out because there was more than one paragraph in the 2010 guidelines, or what, but all of the same standards are in the 2010 guidelines. They're just clarifying and providing examples from case law for some of the most common rejections.
The 2010 guidelines do not remove three of the tests. They do provide examples from case law over four of the tests which come up commonly. There haven't been any cases since 2007 that involve the other three tests, so there's no case law to quote and summarize. This is simply the Slashdot poster getting freaked out over nothing.
the usa economy having outsourced well everything and allowing 20 million plus mexicans to do the menial labour means you have what left IP i call MP ( MORON PROPERTY) WAR ( the military industrial complex ) - too bad there just aren't many targets left eh? Guess killing a few hundred civilians will keep people employed. SO what is left?
The referenced article draws conclusions completely at odds with the actual USPTO notice.
I guess it's to be expected that anything appearing on Slashsdot regarding patents would be totally erroneous, but this is one of the worst examples ever. In fact the USPTO encourages examiners to use reasoning outside the examples, which would be considered a BROADENING of the obviousness guidelines.
This story is quite the howler. Well done Slashsdot; you have hit a new low here.
Seriously, it seems pretty clear swpat.org didn't even bother to read the 2010 Guidelines, and they even posted them!
The new guidelines don't do anything the summary or TFA say. You can't even get mad at the summary, except for obviously not reading TFA either (at least not beyond the first few lines).
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Im not sure if this is good or not. It presently takes about 18 months for a patent application to even get looked at, and close to 5 years for the patent to get issued. Relaxing the standards should allow faster processing of patents, but it may result in more garbage in the pipe.
What they should do is required patent applications to be pre-approved by a licensed agency before submission. That would weed out most of the junk patents, though it would cost more. But costing more is not necessarily a bad thing either since that will also reduce the number of junk patents.
Part of the problem here is that it is very hard to talk about what is obvious after you've been told the idea. This is the problem of the Egg of Columbus. Challenge someone to make an egg stand on end with no tools and they are likely to fail. Show them someone smash one end of the egg and then make it stand, and they are going to say that making an egg stand on its end is obvious. One the other hand this kind of reasoning can be used to argue that some stupidly obvious things are actually deserving of a patent. So what should happen is not an argument about what is obvious to someone who has already been told, because obviousness is too hard to determine in hindsight.
Instead, pose the problem that the patent is proposing to solve to a team of experts. If they come up with the same or a pretty much as good solution within a day or so, then the patent is not the sort of thing that should be granted. Patents are supposed to incentivize expensive development of technology and reward the people who at great effort come up with solutions to problems that otherwise wouldn't get solved. If a team of experts can solve the problem in a day, then there is no need for patents to incentivize the creation of such solutions. On the contrary experts in the field can already solve the problem without patents and so having patents is enabling nothing but leeching. Even if this is not the end-all be-all solution to low quality patents, I think that having such a procedure available would greatly inform patent examiners as to the state of the field any particular patent is in and what is obvious to practitioners in that field.
Another thing that might be done is to ask the team to read the actual patent after they tried to solve the problem and consider if they think it is obvious and, most importantly, if they can reasonably understand the language of the patent. If they can't understand it, then again patents are not serving the role of disseminating information that inventors would otherwise keep secret, and so the patent must be improved to be understandable to an expert in the field that it is in.
Somebody should patent the process of filing a patent.
Is for the FSF or some other trustworthy organization to commit a patent spam atrocity that involves patenting all sorts concepts related to generating patent applications. Perhaps they can patent the abstract concept of a mental algorithm by which numerous obvious patents can be generated from a single thought. Maybe they should go all the way and patent the abstract concept of a mental algorithm -- just make thinking an activity that might cause expensive litigation while simultaneously making thinking about litigation a cause of potentially expensive litigation. Before long, everyone who even likes to dabble in the realm of patent spam or patent related legal asshattery will be locked in a litigation loop until they die of dehydration. It will be like a virus that does a while(1) { fork(); } to the patent trolls.
USPTO Decides To Lower Obviousness Standards
The USPTO has standards?
If a problem be proposed to 10 experts in a field and any of them come up with the invention idea, it should be treated as obvious. That kind of test would be clear (but it would mean that most of the derivative stuff allowed today would be rejected, and probably far fewer attempts to patent such would ever be made. Natch, the experts should not be determined by the applicant to avoid conflict of interest. Some internet based variants of this could be tried also.
The experts need to be told only of the problem, and come up with answers. This would btw mean that inventions like the telephone, where two or more people (I know of two, but there may have been others) showed up at essentially the same time with applications, would be ruled obvious. (Note that until the carbon microphone was invented (Edison?) the telephone was unusable anyway.)
apparently the parent had contradicted with someone's political religion.
Read radical news here
So, why does ipeg.eu say:
and
?
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Bush started a war he didn't know how to finish, bungled Katrina, presided over the passing of the DMCA and Patriot acts, color-coded fear against Muslims, and was holding the wheel for eight long years when the economy drove off a cliff on the ideological experiment that greedy self-interest will self-regulate (a legitimate inheritance by birth and creed). If he got blamed for anything else, I was already past my saturation point. On the plus side, he galvanized.
Obama stabilized the banking sector, but not enough. He started the process of fixing the medicare problem, but left too much to be fixed later. He also failed to send U.S. nuclear submarines into the gulf to quell the oil leak, never mind that it wouldn't have worked. He failed to send U.S. nuclear submarines to deal with the corrupt bankers on Wall Street. It's not clear this lynching would have worked, either, without sinking everything. He capitulated to republican demands to prioritize a balanced budget over boosting employment. On the plus side, if you can stay awake, his sentences parse.
I listened to a great EconTalk podcast last night on the destructive nature of letting people patent the wrong things.
Heller on Gridlock and the Tragedy of the Anticommons. Heller hails from the Columbia Law School.
One of the lessons from Iraq is that it is easier to tear something apart than put it back together again. This is why republicans barely try to address problems such as health care reform. The nice thing about foreign adventures is leaving the mess behind.
Tell me, what was the Bush legacy on building up government institutions for the long term? If you count the Patriot Act, I think American should fold up shop on exporting freedom. If that's not what America wants to be, so be it.
And it's not like strengthening government has to lead to big or expensive government. Fixing the patent system would be good for American competitiveness, and probably save money as well.
Some of these measures would be unpopular among circles that peddle influence. They get away with this under the cover of media that inflames polarization until the average voter can't distinguish better from worse. Obama doesn't appear to have the backbone to get on TV and challenge this, a monumental missed opportunity considering that W handed him the worst mess since the great depression.
Here's why TFA summary seems to be correct:
From http://www.ipeg.eu/blog/?p=1742
And...
And Patently-O says that these guidelines do affect patent granting/rejection: http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html
If anyone wants to explain that those sites called it wrong, I'm all ears.
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Commenter says:
Ok, but do you know that they don't have to have force of law in order to change how examiners evaluate patents? This is confirmed by Dennis Crouch of Patently-O:
http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html
Hope that helps.
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I'm a layperson, and you're a layperson, and we disagree. Fine.
But here are two articles by patent lawyers, and they support TFA's assertions:
http://en.swpat.org/wiki/Raising_examination_standards_won't_fix_much#Current_trend:_standards_getting_lower.3F
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I think Michele Boldrin agrees with you. His view is basically that the basic idea of patents is sound, but today's reality doesn't mesh well with that idea because of a radically different cost structure (i.e. the cost of starting a company and the cost of copying an idea is different from when patents where instituted).
Here's his discussion with economist Russ Roberts on the subject: http://www.econtalk.org/archives/2009/05/boldrin_on_inte.html (which links to his book, Against Intellectual Property, which you can read for free on-line).
[On a side note, I thumbs-up Econtalk, so if your podcatcher is hungry here's one more feed for it].
I thought the U.S. wanted to have the upper hand on the "bad internet guys". How is that going to happen now that patent trolls have more power to sue any programmer or company who even mentions their patented "ideas"?
Epic Fail.
They can't do that. I already have a patent on that sort of rule change.
It's a mistake to insist -- as do some patent opponents -- that increased patent issuance can necessarily be equated with decreased patent quality. USPTO Director David Kappos has implemented some creative programs and pragmatic approaches that appear already to have gone far in improving efficiency and morale at the patent office. He seems to have earned the high opinion in which he is generally held, and he deserves credit for his accomplishments.