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USPTO Decides To Lower Obviousness Standards

Posted by samzenpus on from the patent-limbo-stick dept.

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.'"

6 of 129 comments (clear)

  1. trying to undo KSR? by l2718 · · Score: 3, Insightful

    The 2007 guidelines were needed after KSR v. Teleflex . It seems the USPTO is now trying to push back against that ruling.

    1. Re:trying to undo KSR? by Antique+Geekmeister · · Score: 5, Insightful

      They're a bureaucracy. Their funding, staff, and political power are based on their work actually mattering to someone. So are the bribes, perks, "business conferences", seminars with "concerned business leaders", political contributions for candidates friendly to their office, etc. So are their after government service careers as patent attorneys or consultants, and the jobs of their peers in industry.

      This kind of thing is true of _all_ bureaucracies. It often takes a force from outside, such as a visionary leader or a defining test case, to serously alter such standards. We had some hopes that the "Bilski" case would improve the guidelines, but it merely created new layers of creative interpretation for patent submissions to provide.

  2. The same mistake... by Anonymous Coward · · Score: 5, Insightful

    ...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.

  3. Re:wtf? by shentino · · Score: 4, Insightful

    The courts are already too backlogged with everything else to have time to get ticked at patents specifically.

    Face it, our *entire* government has been bought and paid for.

  4. Re:wtf? by Pinky's+Brain · · Score: 4, Insightful

    There can be no rationale for an obviousness test ... ultimately something is obvious just because.

    Of course lawyers will never accept this ... having to take the word from experts without being able to weasel their way into the decision? No fucking way.

  5. Re:wtf? by RocketRabbit · · Score: 3, Insightful

    The point is that the fucking lawyer's job is to tie up the court system and take a third of the cash.

    Lawyers can not accept the idea of other non-Lawyer people having any say-so, as it sort of ruins their scam.