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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.'"

3 of 129 comments (clear)

  1. wtf? by shentino · · Score: 3, Interesting

    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?

  2. Obvious is different to different people by LordNacho · · Score: 3, Interesting

    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?

  3. Re:trying to undo KSR? by Anonymous Coward · · Score: 1, Interesting

    These guidelines are just that, guidelines. They are not binding on the Examiners, the court rulings are. They are just fleshing out certain tests because they require very specific factual patterns and you had Examiners applying them without understanding them. The other tests outlined in the KSR decision are still available for use, and will be available until the Supreme Court says they are not.

    As an Examiner I have to say this really won't change how people examine, unless they were applying obviousness rationales incorrectly in the first place. Nobody in the Examining corps wants to get rid of KSR, and many wish it went further in certain areas. I know a bunch of people (myself included) who are very frustrated by certain corporations which file patents for basically known things but change one random detail, for example the location of a button, and then will argue that it makes it patentable.