But did it involve using the PSTN at both ends? Just computer to computer via is acknowledged by the patent as prior art; the central point of novelty is the use of plain telephone sets at both ends communicating with each respective CO; that is regular duplex telephone traffic routed to a local service that converts both ends to/from a connection over IP to a similar remote service that converts back to an appropriate duplex analog telephone traffic to the remote party's analog telephone.
That is incorrect. You infringe a claim if it "reads on" at least one independent claim; you don't infringe if it doesn't read on any independent claim.
Dependent claims (e. g. "2. The apparatus as in claim 1 wherein...") include all the limitations of the parent claim and specifies additional limitations One of the main reasons for submitting dependent claims (or multiple independent claims, for that matter) is a level of insurance; if a claim is ultimately held invalid over prior art it might be the case where a claim dependent from it might not be held invalid (because it can't be shown to be obvious over the prior art applied to the parent, with or without additional prior art). The patentability of dependent claims must be considered separately over the patentability of any parent claims.
1. First Action (pick up a case and send applicant a non-final rejection)
...or a first action allowance...2 counts!
2. Allowing the application (to become a patent)
Don't forget abandonments and Examiner's Answers (Appeal? What's that?)
3. Make them pay more money by filing a Request for Continued Examination (RCE)
Do you get an abandonment for the original filing and then have 2 counts for examining the RCE as you would if they had filed a continuation, or do you lose any counts? RCE's came years after I left the Office.
The change from a "nominal" fee structure (For example basic filing fee $65 for one independent claim and 10 total claims) which didn't come close to offsetting the cost to a "near" self supporting structure was made under the influence of former Commissioner Gerald Mossinghof, Ronald Reagan's pick to head the PTO. Funding wasn't actually cut off, though; for example a lower "Small Entity" rate was established for independent inventors and small businesses.
Mossinghof was also the driver of getting the big automation push going (up to this time office actions were drafted by hand and typed by clerks on standard electric typewriters; diligent examiners could get searches of some patent and scientific databases by giving searches to librarians at the Scientific Library who used 300 Baud acoustic modem teletypewriter terminals to do the search). He also was responsible for getting the Patent Term Extension Act which permitted extended patent terms for drug patents that had been delayed to market by other government agencies, mostly the FDA.
Here in the US I was able to get my first GMail account without an invite or use of mobile phone. Right after Google announced GMail they let people request an account. There were certain Google services that automatically qualified one immediately for GMail ( I forget which one(s)), but I didn't have one of those, so I waited.
Finally, about 10 months later I received an invite directly from Google, not from any third party.
I don't recall using a scheme like this for the OS, pre se, but haven't there been applications that were distributed on a CD which provided basic functionality but had additional functionality code of some sorts ("module"?) on the CD that could be activated after paying a fee to the publisher, who would then send a key to unlock the added functionality? Extrapolating this to a web enabled model doesn't seem to be an unobvious step.
Neither the specification, nor the Information Disclosure Document (That only references two MS co-pending patent applications) seem to even suggest any incremental functionality for pay type schemes. I would think that such prior art functionality unlocking schemes, would be relevant background information in considering the question of obviousness and, at a minimum, ought to have been cited by MS as related prior art in order to satisfy their duty to dislose relevant prior art.
I can't find the reference to any of these schemes since I have something else to do now; anyone recall something like this?
You are correct. For any doubters/curious you can down load a pdf of the application documents (including the declaration signed by the inventors) here.
Right now, he patent clerk's job is to assess prior patents (easy) but not prior art (expensive).
Theoretically, examiners are, nominally, required to access all avaliable "printed publications" which, in addition to the US patent database, include others, such as foreign patents, and other "non-patent literature", which could be things like scientific journals, sales brochures and other company/organization literature, etc. Back in the primative pre-computer era the patent office search rooms had row after row of "shoe cases" (older wooden, then later metal racks of narrow, slide out boxes sized to contain the patents, the foreign patents and the non-patent literature.
New patents were added automatically as each weekly issue became available, but foreign patents were added by cooperative exchanges with foreign patent offices, but had to be classified into the US patent classification scheme; this was done by the examiners in each art unit, somewhat hapazzardly. The non-patent literature was also added by examiner initiative. Often, the PTO's Scientific Library had subscriptions to many journals both scientific and trade, which were circulated to the appropriate art units for perusal.
As you indicate, there's is no practical way to get expert opinion and/or testimony, due to confidentiality of the application (at least, now, for the first 18 months) and the cumbersome burden this puts on a production type system that characterizes the PTO. This would be more useful for getting pointers on where better publications or establishing the "level of ordinary skill in the art" so crucial for obviousness rejections.
The main problem is that there is still not enough time available, on average, to make a thorough search of prior art, and, in the most frequent case of obviousness, to support the arguments needed to sustain the rejections. The production system is designed to "move prosecution along" and, since a patent claims are presumed valid (even at the application stage) the burden is always on the PTO to show, by detailed application of the prior art, that the claims do not meet the requirements of the patent statutes. If you can't get the best evidence (prior art) in any given case, you have to allow the claim. If you hold it up, you don't get production credit or get demerits for not acting in a timely manner; too much of this and you get fired, in which case, someone else will be working on applications who will make production and dates.
PCT/US04/42423 was filed a year later claiming the benefit of this filing date of the US application. I have no idea what other "designated offices" have been elected; what other patent offices will accept software claims?
Also, according to a recent PTO Official Gazette The art unit to which this application is assigned has been giving first actions on applications filed about the time of this one, so perhaps an action will be forthcoming soon, although it depends mainly on the individual examiner's docket when the application must be acted on (oldest new application in docket must be acted on within two biweeks).
This is a basic property of the right granted by a patent: The right to "exclude others" from making using or selling the invention, but not a right for the patent owner to make use or sell it themselves.
A common scenario: Party A gets a broad patent on some technology. Subsequently, party B gets a patent on an improved version of A's technology. Just because B has a patent doesn't mean he can make sell or use it without coming to an agreement with A, since A's patent still applies. Contra-wise, A can't use B's specific version of the technology without agreement, although A can still use his technology without agreement with B if A avoids B's specific technology (assumption here, of course, that there's no other patents that apply).
While I'm totally dismissing the speculation of direct bribery this is historically extremely rare in the PTO. More likely avenues of influence other than the usual routes such as reexamination are protesting to higher PTO management and making it public to try to get pressure to "roll downhill" onto the examiner, or have the prosecution monitored, etc.
Just to further clarify if you infringe a dependent claim, you also infringe the entire parent chain of claims up to the root independent claim.
The main reason for even including dependent claims is to possibly retain validity if broader parent claims are subsequently ruled invalid, since each claim must be considered as a whole for the purposes of applying prior art. Of course, if the accused infringer is not described in a surviving, narrower dependent claim, then he avoids the infringement, so, within the limits of the patent specification disclosure (which cannot be added to after the original filing) the strategy is to draft broad claims, then add dependent claims directed to increasing levels of detail.
While I suspect your comment was made in jest I must say that anyone who succeeded in being hired would be quickly disabused of any hope of being effective.
The problem is not in the trenches but in a management culture, developed over decades (starting back in the late 1960's) that based patent examination as a process measured, effectively, by easily determined metrics such as number of applications processed per unit time ("Hours per balanced disposals") and timeliness of actions (oldest new application moved every other bi-week, amendments acted on within two months). Although quality is nominally figured into examiner evaluation, this requires a manager to actually look at the claims and prior art and make a judgment, if necessary, finding better prior art to show poor quality. This would require real work on the managers part. On the other hand, boasting to Congress how the PTO has processed a record number of applications and reduced pendency is easier to show, so this is what PTO management has done.
The sad state of quality, however, has not gone unnoticed recently, so the management has had to react; unfortunately, unwilling to seriously scrap the process-oriented system their solutions involve "bolting on" various review oriented initiatives, such as "quality review" (a separate unit that samples allowed applications) and "second pair of eyes" review for all allowances in the art unit, all of which are after the fact and fail to tackle the basic flaw of the "time in motion" mentality.
The result of this is an appalling actual level of quality and very low morale in the examining corps. The high attrition rate that complicates PTO staffing goals includes quits and firings due to failure to meet process goals; I'm not sure many, if any, are based on real quality issues such as allowing an unpatentable claim.
One reason why the CAFC has really run with the the burden of the "suggestion" test for obviousness at issue in KSR is the presence of one of the former Judges on the CAFC when this was make part of case law on section 103.
Giles S. Rich, who was an active judge on the Court right up to his death in 1999 was one of the two co-drafters of the major revision of the patent laws passed by Congress in 1952. One of the products of that effort, section 103, was a codification of the previous judicially created "lack of invention" and the like. Thus, after being nominated and confirmed to the CCPA and then moving with all the CCPA judges to the CAFC his interpretation of the meaning and application of this section has been given great weight.
The CAFC had no problem "interpreting" Graham to include this test; we will now see if the SCOTUS will agree with this.
I'll open with the usual disclaimer: I am not a lawyer (I hate the acronym associated with this expression). The question(s) to be answered by the SCOTUS are:
(1) Whether digital software code--an intangible sequence of "1's" and "0's"--may
be considered a "component[] of a patented invention" within the meaning of
Section 271(f)(1); and, if so,
(2) Whether copies of such a "component[]" made in a foreign country are "supplie
[d] . . . from the United States."
Although the very issue of the patentablility of software seems to be up for grabs in the first question as urged by the amicus brief an answer of "no" would not necessarily mean that software patents are no longer valid since it could be deemed only "within the meaning of Section 271(f)(1)". Also note that software patents rarely cover mere binaries, but higher levels of abstraction, the binaries being just very specific implementations of the program. My uninformed guess is that this case will not be used as a vehicle to invalidate all software patents under 35 USC 101, the section that would be involved in declaring software non-statutory subject matter, but whether the export of a software "master" to be duplicated outside the US is to be considered "a component supplied from the United States". In this context it would be closer to, say, exporting a mold, or set of molds used to create one or more plastic parts that are combined into a machine that would infringe the patent if done in the US.
In any event we will get more clues how the SCOTUS is thinking during the oral arguments scheduled for February 21.
Correct, this is NOT claiming RSS; in fact it contemplates being used for Atom, too.
It's just providing a system-wide API for syndicated content, which might be any source, RSS only being one. Not saying it's patentable, of course, just that it is not intended to cover RSS itself.
I agree; it looks pretty good. I especially like the ease with which the image version of the patent is presented; no wrestling with those horrid tiff images on the PTO's site (rotten ui; I have lots of problems using it with Firefox on my system; perhaps I need a better plugin).
I used the Google search to pull up a "memorable" application I examined that had a third party Reexamination request filed within a year of issue; the image file had the Reexamination certificate displayed right at the end of the original patent; I haven't checked if they do that for Reissues; it realy enhances the value of the search to have this all together; All they need to add to this is a direct link to the online prosecution data (PAIR) to get a good "first assessment" on a patent when it comes up for discussion here.
Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
In a nutshell design patents protect the ornamental design of an article of manufacture; utilitarian aspects play no part in evaluating this.
To cover a functional aspect of a screen layout a regular utility patent might be obtained.
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.
That's exactly what I've done, and it works well. I set one up on yahoo, then visited a whole bunch of porn sites (errr, just for research purposes, of course) and gave out this address, just to see what kind of spam I get. Sometimes I have to remember to visit the account to make sure It doesn't go stale. I just visited it for the the first time in over a month and the bulk mail folder had over 800 messages.
Interestingly, most of the spam I get is not pr0n or dick enlarging stuff, penny stock scams, but very mundane crap like discounts at well know retailers and the like. In contrast, my more mainstream accounts get the drug, penny stock and pr0n stuff. It's almost like I'm getting the "wrong" kind of spam in all cases.
Slashdot Mirror
I AGREEE LOL
But did it involve using the PSTN at both ends? Just computer to computer via is acknowledged by the patent as prior art; the central point of novelty is the use of plain telephone sets at both ends communicating with each respective CO; that is regular duplex telephone traffic routed to a local service that converts both ends to/from a connection over IP to a similar remote service that converts back to an appropriate duplex analog telephone traffic to the remote party's analog telephone.
Not if you consider all the broad claims, as I pointed out in a comment to the original story.
That is incorrect. You infringe a claim if it "reads on" at least one independent claim; you don't infringe if it doesn't read on any independent claim.
Dependent claims (e. g. "2. The apparatus as in claim 1 wherein...") include all the limitations of the parent claim and specifies additional limitations One of the main reasons for submitting dependent claims (or multiple independent claims, for that matter) is a level of insurance; if a claim is ultimately held invalid over prior art it might be the case where a claim dependent from it might not be held invalid (because it can't be shown to be obvious over the prior art applied to the parent, with or without additional prior art). The patentability of dependent claims must be considered separately over the patentability of any parent claims.
1. First Action (pick up a case and send applicant a non-final rejection)
...or a first action allowance...2 counts!
2. Allowing the application (to become a patent)
Don't forget abandonments and Examiner's Answers (Appeal? What's that?)
3. Make them pay more money by filing a Request for Continued Examination (RCE)
Do you get an abandonment for the original filing and then have 2 counts for examining the RCE as you would if they had filed a continuation, or do you lose any counts? RCE's came years after I left the Office.
The change from a "nominal" fee structure (For example basic filing fee $65 for one independent claim and 10 total claims) which didn't come close to offsetting the cost to a "near" self supporting structure was made under the influence of former Commissioner Gerald Mossinghof, Ronald Reagan's pick to head the PTO. Funding wasn't actually cut off, though; for example a lower "Small Entity" rate was established for independent inventors and small businesses.
Mossinghof was also the driver of getting the big automation push going (up to this time office actions were drafted by hand and typed by clerks on standard electric typewriters; diligent examiners could get searches of some patent and scientific databases by giving searches to librarians at the Scientific Library who used 300 Baud acoustic modem teletypewriter terminals to do the search). He also was responsible for getting the Patent Term Extension Act which permitted extended patent terms for drug patents that had been delayed to market by other government agencies, mostly the FDA.
Because it was only published February 8, 2007 ( 4 days prior to this comment ).
Here in the US I was able to get my first GMail account without an invite or use of mobile phone. Right after Google announced GMail they let people request an account. There were certain Google services that automatically qualified one immediately for GMail ( I forget which one(s)), but I didn't have one of those, so I waited.
Finally, about 10 months later I received an invite directly from Google, not from any third party.
I don't recall using a scheme like this for the OS, pre se, but haven't there been applications that were distributed on a CD which provided basic functionality but had additional functionality code of some sorts ("module"?) on the CD that could be activated after paying a fee to the publisher, who would then send a key to unlock the added functionality? Extrapolating this to a web enabled model doesn't seem to be an unobvious step.
Neither the specification, nor the Information Disclosure Document (That only references two MS co-pending patent applications) seem to even suggest any incremental functionality for pay type schemes. I would think that such prior art functionality unlocking schemes, would be relevant background information in considering the question of obviousness and, at a minimum, ought to have been cited by MS as related prior art in order to satisfy their duty to dislose relevant prior art.
I can't find the reference to any of these schemes since I have something else to do now; anyone recall something like this?
You are correct. For any doubters/curious you can down load a pdf of the application documents (including the declaration signed by the inventors) here.
A better link is here.
Theoretically, examiners are, nominally, required to access all avaliable "printed publications" which, in addition to the US patent database, include others, such as foreign patents, and other "non-patent literature", which could be things like scientific journals, sales brochures and other company/organization literature, etc. Back in the primative pre-computer era the patent office search rooms had row after row of "shoe cases" (older wooden, then later metal racks of narrow, slide out boxes sized to contain the patents, the foreign patents and the non-patent literature.
New patents were added automatically as each weekly issue became available, but foreign patents were added by cooperative exchanges with foreign patent offices, but had to be classified into the US patent classification scheme; this was done by the examiners in each art unit, somewhat hapazzardly. The non-patent literature was also added by examiner initiative. Often, the PTO's Scientific Library had subscriptions to many journals both scientific and trade, which were circulated to the appropriate art units for perusal.
As you indicate, there's is no practical way to get expert opinion and/or testimony, due to confidentiality of the application (at least, now, for the first 18 months) and the cumbersome burden this puts on a production type system that characterizes the PTO. This would be more useful for getting pointers on where better publications or establishing the "level of ordinary skill in the art" so crucial for obviousness rejections.
The main problem is that there is still not enough time available, on average, to make a thorough search of prior art, and, in the most frequent case of obviousness, to support the arguments needed to sustain the rejections. The production system is designed to "move prosecution along" and, since a patent claims are presumed valid (even at the application stage) the burden is always on the PTO to show, by detailed application of the prior art, that the claims do not meet the requirements of the patent statutes. If you can't get the best evidence (prior art) in any given case, you have to allow the claim. If you hold it up, you don't get production credit or get demerits for not acting in a timely manner; too much of this and you get fired, in which case, someone else will be working on applications who will make production and dates.
Don't you mean ex parte reexamination?
After reexam is ordered, it's only the patent owner involved. The inter partes variety is a relatively recent extension made after I left the PTO.
PCT/US04/42423 was filed a year later claiming the benefit of this filing date of the US application. I have no idea what other "designated offices" have been elected; what other patent offices will accept software claims?
Also, according to a recent PTO Official Gazette The art unit to which this application is assigned has been giving first actions on applications filed about the time of this one, so perhaps an action will be forthcoming soon, although it depends mainly on the individual examiner's docket when the application must be acted on (oldest new application in docket must be acted on within two biweeks).
This is a basic property of the right granted by a patent: The right to "exclude others" from making using or selling the invention, but not a right for the patent owner to make use or sell it themselves.
A common scenario: Party A gets a broad patent on some technology. Subsequently, party B gets a patent on an improved version of A's technology. Just because B has a patent doesn't mean he can make sell or use it without coming to an agreement with A, since A's patent still applies. Contra-wise, A can't use B's specific version of the technology without agreement, although A can still use his technology without agreement with B if A avoids B's specific technology (assumption here, of course, that there's no other patents that apply).
While I'm totally dismissing the speculation of direct bribery this is historically extremely rare in the PTO. More likely avenues of influence other than the usual routes such as reexamination are protesting to higher PTO management and making it public to try to get pressure to "roll downhill" onto the examiner, or have the prosecution monitored, etc.
Just to further clarify if you infringe a dependent claim, you also infringe the entire parent chain of claims up to the root independent claim.
The main reason for even including dependent claims is to possibly retain validity if broader parent claims are subsequently ruled invalid, since each claim must be considered as a whole for the purposes of applying prior art. Of course, if the accused infringer is not described in a surviving, narrower dependent claim, then he avoids the infringement, so, within the limits of the patent specification disclosure (which cannot be added to after the original filing) the strategy is to draft broad claims, then add dependent claims directed to increasing levels of detail.
While I suspect your comment was made in jest I must say that anyone who succeeded in being hired would be quickly disabused of any hope of being effective.
The problem is not in the trenches but in a management culture, developed over decades (starting back in the late 1960's) that based patent examination as a process measured, effectively, by easily determined metrics such as number of applications processed per unit time ("Hours per balanced disposals") and timeliness of actions (oldest new application moved every other bi-week, amendments acted on within two months). Although quality is nominally figured into examiner evaluation, this requires a manager to actually look at the claims and prior art and make a judgment, if necessary, finding better prior art to show poor quality. This would require real work on the managers part. On the other hand, boasting to Congress how the PTO has processed a record number of applications and reduced pendency is easier to show, so this is what PTO management has done.
The sad state of quality, however, has not gone unnoticed recently, so the management has had to react; unfortunately, unwilling to seriously scrap the process-oriented system their solutions involve "bolting on" various review oriented initiatives, such as "quality review" (a separate unit that samples allowed applications) and "second pair of eyes" review for all allowances in the art unit, all of which are after the fact and fail to tackle the basic flaw of the "time in motion" mentality.
The result of this is an appalling actual level of quality and very low morale in the examining corps. The high attrition rate that complicates PTO staffing goals includes quits and firings due to failure to meet process goals; I'm not sure many, if any, are based on real quality issues such as allowing an unpatentable claim.
One reason why the CAFC has really run with the the burden of the "suggestion" test for obviousness at issue in KSR is the presence of one of the former Judges on the CAFC when this was make part of case law on section 103.
Giles S. Rich, who was an active judge on the Court right up to his death in 1999 was one of the two co-drafters of the major revision of the patent laws passed by Congress in 1952. One of the products of that effort, section 103, was a codification of the previous judicially created "lack of invention" and the like. Thus, after being nominated and confirmed to the CCPA and then moving with all the CCPA judges to the CAFC his interpretation of the meaning and application of this section has been given great weight.
The CAFC had no problem "interpreting" Graham to include this test; we will now see if the SCOTUS will agree with this.
Although the very issue of the patentablility of software seems to be up for grabs in the first question as urged by the amicus brief an answer of "no" would not necessarily mean that software patents are no longer valid since it could be deemed only "within the meaning of Section 271(f)(1)". Also note that software patents rarely cover mere binaries, but higher levels of abstraction, the binaries being just very specific implementations of the program. My uninformed guess is that this case will not be used as a vehicle to invalidate all software patents under 35 USC 101, the section that would be involved in declaring software non-statutory subject matter, but whether the export of a software "master" to be duplicated outside the US is to be considered "a component supplied from the United States". In this context it would be closer to, say, exporting a mold, or set of molds used to create one or more plastic parts that are combined into a machine that would infringe the patent if done in the US.
In any event we will get more clues how the SCOTUS is thinking during the oral arguments scheduled for February 21.
Correct, this is NOT claiming RSS; in fact it contemplates being used for Atom, too.
It's just providing a system-wide API for syndicated content, which might be any source, RSS only being one. Not saying it's patentable, of course, just that it is not intended to cover RSS itself.
I agree; it looks pretty good. I especially like the ease with which the image version of the patent is presented; no wrestling with those horrid tiff images on the PTO's site (rotten ui; I have lots of problems using it with Firefox on my system; perhaps I need a better plugin).
I used the Google search to pull up a "memorable" application I examined that had a third party Reexamination request filed within a year of issue; the image file had the Reexamination certificate displayed right at the end of the original patent; I haven't checked if they do that for Reissues; it realy enhances the value of the search to have this all together; All they need to add to this is a direct link to the online prosecution data (PAIR) to get a good "first assessment" on a patent when it comes up for discussion here.
In a nutshell design patents protect the ornamental design of an article of manufacture; utilitarian aspects play no part in evaluating this.
To cover a functional aspect of a screen layout a regular utility patent might be obtained.
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.
That's exactly what I've done, and it works well. I set one up on yahoo, then visited a whole bunch of porn sites (errr, just for research purposes, of course) and gave out this address, just to see what kind of spam I get. Sometimes I have to remember to visit the account to make sure It doesn't go stale. I just visited it for the the first time in over a month and the bulk mail folder had over 800 messages.
Interestingly, most of the spam I get is not pr0n or dick enlarging stuff, penny stock scams, but very mundane crap like discounts at well know retailers and the like. In contrast, my more mainstream accounts get the drug, penny stock and pr0n stuff. It's almost like I'm getting the "wrong" kind of spam in all cases.