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USPTO Decides To Lower Obviousness Standards

samzenpus posted more than 3 years ago | from the patent-limbo-stick dept.

Patents 129

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.'"

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I patent the "First Post" (3, Funny)

DevConcepts (1194347) | more than 3 years ago | (#34154184)

Pay me!

Re:I patent the "First Post" (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34155070)

Contrary to what TFA seems to think, I'm pretty sure "First Post" is obvious under the 2010 KSR Guidelines.

Sorry bro, your patent just got rejected.

first post (0, Troll)

slick7 (1703596) | more than 3 years ago | (#34154188)

first post...HA...how obvious is that?

Re:first post (2, Funny)

DevConcepts (1194347) | more than 3 years ago | (#34154198)

That was the point.

Re:first post (2, Funny)

Foobar of Borg (690622) | more than 3 years ago | (#34154226)

first post...HA...how obvious is that?

Apparently, DevConcepts already has prior art!

Re:first post (0)

Anonymous Coward | more than 3 years ago | (#34154994)

Congratulations slick7! Patent approved!

trying to undo KSR? (3, Insightful)

l2718 (514756) | more than 3 years ago | (#34154192)

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

Re:trying to undo KSR? (5, Insightful)

Antique Geekmeister (740220) | more than 3 years ago | (#34154316)

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.

This is NOT true of _all_ bureaucracies. (0, Troll)

Anonymous Coward | more than 3 years ago | (#34154398)

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.

Re:This is NOT true of _all_ bureaucracies. (1, Insightful)

Anonymous Coward | more than 3 years ago | (#34154602)

They aren't, but the universe doesn't care if you're playing games.

Re:trying to undo KSR? (0)

Anonymous Coward | more than 3 years ago | (#34154406)

But, but, Barack H Obama (peace be upon him!) is the chosen one! If he's not a visionary leader, who is?

Re:trying to undo KSR? (0)

Anonymous Coward | more than 3 years ago | (#34154914)

tired

Re:trying to undo KSR? (1)

SuricouRaven (1897204) | more than 3 years ago | (#34154954)

Do you remember how, back in the Bush days, every mistake made or unpopular decision by the federal government was blamed on him personally? It works for Obama too. Doesn't matter if the president actually has anything to do with the event at all, he still gets the credit or blame.

Re:trying to undo KSR? (1)

cgenman (325138) | more than 3 years ago | (#34155206)

He hasn't made a priority push to fix the patent system. Admittedly, there is a whole lot broken that he has pushed to fix. But still, he hasn't even talked about patent reform.

blamology (1, Offtopic)

epine (68316) | more than 3 years ago | (#34156664)

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 [econtalk.org] . 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.

Re:blamology (1)

darth dickinson (169021) | more than 3 years ago | (#34157064)

He capitulated to republican demands to prioritize a balanced budget over boosting employment.

[Citation Needed] [wikipedia.org]

Re:trying to undo KSR? (-1, Redundant)

Nailer235 (1822054) | more than 3 years ago | (#34155146)

How come it's usually the most ignorant and inflammatory statements that are modded to +5 insightful?

Re:trying to undo KSR? (1)

Anne Thwacks (531696) | more than 3 years ago | (#34155700)

You must be new here.

Re:trying to undo KSR? (1)

Antique Geekmeister (740220) | more than 3 years ago | (#34156104)

He's also not offered evidence or first-hand experience to contradict the calims. I'm afraid my observations are founded on direct patent submmissions, working with patent attorneys to get patents submitted for work of my peers, and direct testimony in patent cases (both to confirm and revoke patents).

Re:trying to undo KSR? (1, Interesting)

Anonymous Coward | more than 3 years ago | (#34154718)

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.

Re:trying to undo KSR? (5, Informative)

Bigjeff5 (1143585) | more than 3 years ago | (#34154878)

TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

First off, they are administrative rules, and have no force of law and are not enforceable in any way.

Second, they mearly state that the KSR SCOTUS ruling does not replace the old methods of determining obviousness, it simply gives the PTO new lines of reasoning to use when rejecting a patent.

Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

I don't know where swpat.org got the idea that this eliminated any of the 2007 rationals, but it isn't in there at all. If anything this makes it easier for patent officers to reject a patent for obvious, because it makes it clear that the new standards (2007 guidelines) don't replace the old standards, they apply in addition to the old obviousness standards (pre-2007 guidelines).

Really, if they bothered to read it the wouldn't be making asses of themselves.

Re:trying to undo KSR? (1)

onionman (975962) | more than 3 years ago | (#34155098)

TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

First off, they are administrative rules, and have no force of law and are not enforceable in any way.

Second, they mearly state that the KSR SCOTUS ruling does not replace the old methods of determining obviousness, it simply gives the PTO new lines of reasoning to use when rejecting a patent.

Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

I don't know where swpat.org got the idea that this eliminated any of the 2007 rationals, but it isn't in there at all. If anything this makes it easier for patent officers to reject a patent for obvious, because it makes it clear that the new standards (2007 guidelines) don't replace the old standards, they apply in addition to the old obviousness standards (pre-2007 guidelines).

Really, if they bothered to read it the wouldn't be making asses of themselves.

Please mod parent up. (I don't have mod points or I'd do it myself.)

Re:trying to undo KSR? (2, Insightful)

cgenman (325138) | more than 3 years ago | (#34155232)

Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher standard?

Re:trying to undo KSR? (2, Insightful)

Dragonslicer (991472) | more than 3 years ago | (#34155356)

Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher standard?

How would you enumerate what patents should be allowed? You can't list every possible invention. If you could create a list of patentable inventions, they probably wouldn't be patentable, since you clearly already have someone (or more likely a large number of people on a committee) that has come up with the idea. The list of reasons for rejection is relatively short, so it's much easier to consider an invention patentable unless there's a specific reason to reject it.

Re:trying to undo KSR? (2, Informative)

Foobar of Borg (690622) | more than 3 years ago | (#34155364)

Third, it reminds patent officers that rejections must be based on the law, and that for whatever line of reasoning they follow (specifically talking about the seven rules in the 2007 guidelines here), "appropriate factual findings are required in order to apply the enumerated rationales properly."

Shouldn't approvals be based on the law? Rejections are a refusal to grant special status to an individual. Approvals curtail the freedoms of all other individuals. Shouldn't approvals be held to the higher standard?

Both are based on law. It's just that, the way the law is written, the Patent Office has the initial burden to make a case that the claims in the patent application should not be allowed.

Re:trying to undo KSR? (1)

Foobar of Borg (690622) | more than 3 years ago | (#34155352)

TFA is wrong, you can see it pretty clearly by reading the 2010 KSR guidlines.

Gee, a slashdot article about patents that is clueless about how the patent system actually works! Whoda thunk?

So, why does ipeg.eu back up TFA? (1)

ciaran_o_riordan (662132) | more than 3 years ago | (#34156588)

So, why does ipeg.eu say:

In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.

and

This is in line with the general trend of the PTO under Director Kappos to [...] and give applicants greater opportunities to obtain allowance of claims.

?

Actually, these guidelines *do* affect examiners (1)

ciaran_o_riordan (662132) | more than 3 years ago | (#34156940)

Commenter says:

First off, they are administrative rules, and have no force of law and are not enforceable in any way.

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:

The 18-page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.

http://www.patentlyo.com/patent/2010/09/uspto-guidelines-for-determining-obviousness.html [patentlyo.com]

Hope that helps.

Ah, the American dream (0)

Anonymous Coward | more than 3 years ago | (#34154260)

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.

Re:Ah, the American dream (1)

xOneca (1271886) | more than 3 years ago | (#34154648)

Ah, the American dream

Not only American...

Re:Ah, the American dream (2, Insightful)

digitig (1056110) | more than 3 years ago | (#34155176)

But they have the patent.

Now I'll get rich! (0)

Anonymous Coward | more than 3 years ago | (#34154292)

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

PATENTED FIRST POST IN CAPS LOCK. PWNED BITCH (1)

djfuq (1151563) | more than 3 years ago | (#34154310)

qwerty tert twey
asdf sad fads
zxcv

Huh? (-1)

Anonymous Coward | more than 3 years ago | (#34154324)

give applicants greater opportunities to obtain allowance of claims.

WTF is that even supposed to mean?

Re:Huh? (1)

GaryOlson (737642) | more than 3 years ago | (#34154458)

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.

wtf? (3, Interesting)

shentino (1139071) | more than 3 years ago | (#34154340)

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?

Re:wtf? (1)

jvillain (546827) | more than 3 years ago | (#34154392)

They really need to hire some of those Robo-signers that the banks use. They could clear that back log in no time and push a whole tsunami of economy wrecking patents out the door.

Really nothing helpful is ever going to come out of the patent office. The only hope is that they tick the courts off so much they do some thing rash like making a reasonable decision or some thing.

Re:wtf? (4, Insightful)

shentino (1139071) | more than 3 years ago | (#34154576)

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.

Re:wtf? (0)

Anonymous Coward | more than 3 years ago | (#34154396)

> "a mile a minute"

Maybe they're just getting with the times and raising their speed limit from 60 to 70 (or 75 if you're in the mountain time zone, or 80 if you live in west Texas).

Re:wtf? (0)

hedwards (940851) | more than 3 years ago | (#34154404)

What they really need is to hire a crapload of new workers to examine the patents being submitted. One of the problems they're having is that since pretty much every patent is granted, there's a lot of them being submitted which wouldn't have been in the past. Meaning that by rubber stamping patents they're probably making the workload worse.

Consequently they need to hire a huge number of people to handle the work load and probably raise the standards substantially. Perhaps fine companies that willfully file bad patents to help pay for the extra staff.

Re:wtf? (1)

shentino (1139071) | more than 3 years ago | (#34154596)

Which is exactly why *lowering* the standards looks like someone got paid off.

It's such a batshit insane move that not even the feds could be incompetent enough to pull it off by accident.

And considering all the fuckups the feds have already managed to pull, that's really saying something.

Re:wtf? (1)

BlueStrat (756137) | more than 3 years ago | (#34156988)

It's such a batshit insane move that not even the feds could be incompetent enough to pull it off by accident.

And considering all the fuckups the feds have already managed to pull, that's really saying something.

Two words.

Cloward & Piven.

Chaos, an overwhelmed government taking on ever more burdens, and an over-taxed, over-regulated, and under-employed citizenry losing faith in that government and becoming desperate enough to accept a "new world order" to "fix things" are the goals.

Welcome to your "hope and change" and "fundamental transformation".

Strat

Re:wtf? (1)

arivanov (12034) | more than 3 years ago | (#34154630)

Classic case of a positive feedback loop in action.

Re:wtf? (5, Informative)

The Empiricist (854346) | more than 3 years ago | (#34154454)

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?

It's more likely that they are trying to improve the quality of examiner rejections. Consider a claim for a widget comprising component A and B. The Examiner finds component A in reference Andy, and component B in reference Bob. The examiner then says without providing any rationale that it would have been obvious to combine Andy and Bob to make the claimed widget. A weak rejection like that encourages the applicant to appeal instead of amending the claim. This is bad news, especially if the claimed widget is obvious over Andy and Bob, but the Board of Patent Appeals and Interferences or the Court of Appeals for the Federal Circuit, not having any rationale to review, didn't recognize that the claimed widget was obvious.

Or are they just making it *harder* for that crap to be shot down in court?

Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court. But ultimately, the Patent Office has no say in how the courts determine whether a claimed invention is obvious or not. These guidelines aren't even enforceable through appeal with the Board of Patent Appeals and Interferences:

This 2010 KSR Guidelines Update does not constitute substantive rule making and hence does not have the force and effect of law. It has been developed as a matter of internal Office management and is not intended to create any right or benefit, substantive or procedural, enforceable by any party against the Office. Rejections will continue to be based upon the substantive law, and it is these rejections that are appealable. Consequently, any failure by Office personnel to follow this 2010 KSR Guidelines Update is neither appealable nor petitionable.

A patent practitioner could use these new guidelines to try to persuade an examiner (or that examiner's supervisor) that a rejection wasn't good. But, if the practitioner is unconvincing, then there may not be much that the practitioner can do based solely on these guidelines.

Re:wtf? (4, Insightful)

Pinky's Brain (1158667) | more than 3 years ago | (#34154582)

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.

Re:wtf? (1)

Nailer235 (1822054) | more than 3 years ago | (#34154890)

And how do you propose a patent attorney advises his client? That his application will be denied "just because?"

Re:wtf? (3, Insightful)

RocketRabbit (830691) | more than 3 years ago | (#34155128)

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.

Re:wtf? (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34154938)

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

That's the stupidest thing I have heard in at least a month.

If you can't answer the question "why is it obvious" then you have no business declaring something obvious. The fact that nobody else thought of it before is evidence that it is not obvious, so you'd better have a good reason for saying it is obvious.

That's basically what this ruling does. It doesn't eliminate anything, TFA is wrong. The whole thing boils down to "Make sure you have your facts straight and that your rational to reject a patent is based on the law."

That's it, in a nutshell. It even specifically mentions using the seven rational's listed in the 2007 guidelines, so where TFA got the idea that four of them had been eliminated I have no idea.

Re:wtf? (1)

NoSig (1919688) | more than 3 years ago | (#34155012)

I'd say that it is and certainly should be the person applying for a patent who has the burden to argue convincingly that the patent should be granted. New ideas are certainly not necessarily non-obvious - to have a new idea it suffices merely to consider a problem that hasn't been considered before. Even the most straight forward solution is then going to be new, but it might well be obvious. The originality there is solely in considering a new problem, but problems aren't patentable, or at least they shouldn't be.

Re:wtf? (0)

Anonymous Coward | more than 3 years ago | (#34155086)

...but problems aren't patentable...

Welcome to software patents.

Re:wtf? (1)

Anne Thwacks (531696) | more than 3 years ago | (#34155794)

The fact that nobody else thought of it before is evidence that it is not obvious, so you'd better have a good reason for saying it is obvious.The fact that its so obvious that no one else tried to patent it does not mean that no one thought of trying to patent it before the first application. The fact that USPTO officials cannot think of things for themselves is not proof of anything either.

If its well known that keeping butter cold preserves it, and well known that putting things in fridges keeps them cold, then putting butter in a fridge to preserve it should not be patentable. This ruling appears to mean that, if you were to apply for a patent on preserving butter by putting it in a fridge, then this would not be refused because its obvious (might be prior art, though).

I know stupid when I see it, and this is it!

Re:wtf? (1)

mywhitewolf (1923488) | more than 3 years ago | (#34157252)

the problem is that butter would also be a new invention, and so putting the butter in the fridge would also be patented before butter even hits the shelves, and your saying because it wasn't done before then its not obvious?

Re:wtf? (1)

scamper_22 (1073470) | more than 3 years ago | (#34155224)

And how does a court know what is obvious? Which expert should they 'trust'? I can find an expert to say just about anything in a judgment case.

Oh, so maybe you want to create a panel of experts... appointed by whom? They can also be bought by companies, political affiliations...
They could be like the supreme court... which has its own set of problems.

Or maybe you want a group of self-selected scientists unaccountable to the public and we should just obey their 'expert' opinion. Surely nothing could go wrong with that...

Making working government is 'obvious' until you get into the details of making it work.

Re:wtf? (1)

TheTurtlesMoves (1442727) | more than 3 years ago | (#34157192)

How are Judges (experts of law, that decide matters of law) chosen again?

Re:wtf? (1)

Petrini (49261) | more than 3 years ago | (#34155480)

I'm not sure if you're trolling or not, but what the hey.

Many inventions, even some of the best, are only obvious after you've seen them. Hindsight is 20/20. How many times have you seen a new product and said to yourself or someone else: why didn't I think of that?!

Does that mean that none of these are inventions that are deserving of patent protection? The consensus among people who think about these things is: no, obvious in hindsight isn't a good reason to reject a patent. That's the rationale. So, I guess there can be one.

So, how do you decide what would have been obvious to someone who was thinking about the problem, without having seen the solution, as you now have? These tests are how the USPTO tries to answer that question.

Finally, what makes you think patent lawyers are ignorant? By definition, all of them have a technical degree or university-level training. Many practicing in the biochem field have advanced degrees. PhD is almost a requirement for entry. Many were also researchers before making the transition. Patent lawyers have a much older average starting age than your prototypical lawyers. Heck, I know one who was a tenured university professor for 20 years before looking for a new challenge.

Your post reads to me like the simplistic reaction of someone who's spent maybe 2 minutes thinking about this in the last month -- and both of them after reading this article. I could very well be wrong, but then I'd say you're just poor at communicating.

Re:wtf? (1, Insightful)

Anonymous Coward | more than 3 years ago | (#34154728)

Well, if the Examiner rejections are stronger, then allowed claims would probably be stronger and thus harder to shoot down in court.

I don't think your conclusion follows. If the examiner can reject a claim with a relatively vague reasoning, then the applicant would be forced to justify their claims better. On the other hand if the examiner's powers are limited and he/she has to find a stronger justification for rejecting a claim, then it is easier for the applicant to get claim through.

Basically, it is a question of the balance of power between the applicant and the examiner. The examiner is already at a relatively weak position since he/she is only allowed to spend a very limited time on a single application, compared to the time that applicants and their patent lawyers can invest on the application. Limiting the arguments that the examiner can use only shifts the balance towards the applicant.

Re:wtf? (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34154972)

If the examiner can reject a claim with a relatively vague reasoning, then the applicant would be forced to justify their claims better.

Actually if the rejections are too vague the patent applicant simply appeals the decision and wins when the court says "why the heck is this ruled obvious?"

When the rejections are strong and grounded in facts with SCOTUS derived rationals behind them, it's really really hard to win on appeal, so the patent applicant amends their claims instead.

Re:wtf? (1)

shentino (1139071) | more than 3 years ago | (#34154546)

Call me crazy but I smell someone getting paid off at the USPTO to fill someone's IP war chest.

Re:wtf? (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34154988)

Call me but I smell a website that can't read the fucking 2010 Guidelines.

It doesn't say anything at all about removing any of the rationals. All it says is to be sure to have a solid rational for rejecting a patent on obviousness, and to be sure you have facts to back up that rational. This makes an appeal virtually impossible, and is a very good thing.

Re:wtf? (1)

Bigjeff5 (1143585) | more than 3 years ago | (#34155076)

I mean it, call me!

It gets so lonely... ;)

you don't get it do you (2, Insightful)

chronoss2010 (1825454) | more than 3 years ago | (#34155000)

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?

Obvious is different to different people (3, Interesting)

LordNacho (1909280) | more than 3 years ago | (#34154380)

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?

Re:Obvious is different to different people (1)

fatp (1171151) | more than 3 years ago | (#34154412)

<quote><p>Should we really be rewarding the firms with the fastest lawyers?</p></quote>

Yes.
The law is made by the lawyers, for the lawyers.

Re:Obvious is different to different people (1)

lastchance_000 (847415) | more than 3 years ago | (#34154422)

Should we really be rewarding the firms with the fastest lawyers?

When you think about who runs the country, you'll realize the answer to that question is irrelevant.

The same mistake... (5, Insightful)

Anonymous Coward | more than 3 years ago | (#34154470)

...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.

Re:The same mistake... (1)

SuricouRaven (1897204) | more than 3 years ago | (#34155006)

There is also a patent on streaming video compression. Not a method of implimenting it, but the abstract concept itsself. It's one of the ones listed in the h264 patent portfolio. The standards are so broad, there are many patents on the very concept of some technology. There are patents held on business methods, product interfaces, file formats. A lot of the time their purpose is just to promote vendor lock-in - for example, Microsoft patented the ASF file format and threatened to sue the author of Virtualdub because he wrote a tool capable of converting an ASF/WMV file into an AVI for use with non-Microsoft players.

Re:The same mistake... (1)

makubesu (1910402) | more than 3 years ago | (#34155198)

This is why I feel that whether a patent is awarded should depend on the amount of time and money a company spent coming up with the idea. It's one thing to protect an idea that came out of a decade of research funded by millions of dollars. But to protect an idea that came up in a 30 minute brain storming session? Like you said, software ideas are a dime a dozen, and those should not be protected, unlike the billion a dozen ideas. Patents should encourage a big research investment, not protect wealth.

Re:Obvious is different to different people (1)

Barrinmw (1791848) | more than 3 years ago | (#34154598)

The problem I see is the exponential nature of technological advancement. 200 years ago, a 20 year patent was fine because your patent won't be required for much innovation in that time. Now, lets say I patent the first computer core for a quantum computer. For 20 years, I have essentially stalled innovation in this country unless people pay me a lot more money than what they would normally have to.

Re:Obvious is different to different people (3, Informative)

Bigjeff5 (1143585) | more than 3 years ago | (#34154662)

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.

This has always been true. The point of patents is not so that anyone can build the thing in the patent, the point of patents is so that a competent engineer in the same field could build the thing in the patent.

If you are a chip designer for AMD, you would definitely understand Intel's CPU patents. A transmission designer should be able to understand patents on transmissions. An aeronautical engineer should be able to understand a new airplane design.

That's the point of patents. It has always been the point of patents, it isn't something that has developed over the last 50 years. They are not there to tell you, specifically, how to do something new. They are there to tell anyone who has the required background knowledge how to do something new. If you don't have the required knowledge to understand it, then the patent was never intended for you to begin with.

Re:Obvious is different to different people (1)

HiThere (15173) | more than 3 years ago | (#34155966)

That's the point of patents. It has always been the point of patents, it isn't something that has developed over the last 50 years. They are not there to tell you, specifically, how to do something new. They are there to tell anyone who has the required background knowledge how to do something new. If you don't have the required knowledge to understand it, then the patent was never intended for you to begin with./quote?

Well, they don't work for that. So apparently they are useless, and companies that depend upon them are parasites. I really shouldn't claim that no patents work for that, as I've read very few of them. But it's certainly not required that patents "make patent" the invention they are purportedly revealing to "those skilled in the art", and common reports indicate that it is actively discouraged. This is reinforced because judges generally are not "skilled in the art" and so don't require that the invention actually be revealed. And the patent office no longer requires that a sample of the item patented be deposited. (For software, this should be the source code.)

Personally, I'm not convinced that the whole idea of patents is a bad idea, but I do believe that it's a quite dangerous one, and that the current implementation is considerably worse than not having any patent system at all, and depending on copyrights, trademarks, and trade secrets.

Re:Obvious is different to different people (0)

Anonymous Coward | more than 3 years ago | (#34157176)

This has always been true. The point of patents is not so that anyone can build the thing in the patent, the point of patents is so that a competent engineer in the same field could build the thing in the patent.

And there's the problem with the USPTO right there: the government can't afford competent engineers!

Re:Obvious is different to different people (1)

jonbryce (703250) | more than 3 years ago | (#34154708)

and if you simply copy parts of the Core i7 design, you are breaching copyright law anyway.

Here's a Better Article (4, Informative)

Nailer235 (1822054) | more than 3 years ago | (#34154416)

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 [patentlyo.com]

Summary is incorrect (4, Informative)

Theaetetus (590071) | more than 3 years ago | (#34154818)

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.

Abolish patents. (0, Troll)

unity100 (970058) | more than 3 years ago | (#34154432)

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.

Don't abolish all patents (1)

betterunixthanunix (980855) | more than 3 years ago | (#34154554)

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.

Re:Don't abolish all patents (1)

unity100 (970058) | more than 3 years ago | (#34155102)

again the same overly positivist approach.

let me portray the situation with an analogy :

"i would not say that feudalism needs to be abolished, but rather we need the reform the feudalism system so that it best serves society"

extreme ? yes. in the same direction ? yes.

something that awards the ownership of thoughts and thought concepts to private individuals, is a system that is akin to granting the ownership of entire land swaths to individuals. every time you pass that bridge of thought, you will have to pay that individual a tithe.

analogy stops here. because, it is possible not to pass a certain bridge in daily life, if it is not a very specific situation.

BUT, thought processes, logic, thought constructs cannot be omitted at ANY given point in life. intellectual feudalism is much worse in that respect - anything created using any given 'owned' thought process somewhere, you owe the lord of that thought process a tithe.

in layman's terms : some things, are just bad, faulty in their basic mechanics. patent system is one of these. it cannot work, nomatter how you reform it. it will eventually steer ANY kind of reforms you make, in the direction of its own nature ; feudalism.


a good case in point, is here, just again, in the same day, of the posting of this article :

http://yro.slashdot.org/comments.pl?sid=1857570&cid=34154846 [slashdot.org]

Re:Don't abolish all patents (1)

king neckbeard (1801738) | more than 3 years ago | (#34156888)

The patent system is supposed to be a pragmatic institution. It barters away the rights of the public (and competitors) in hopes of greater disclosure and greater scientific advance. Thus, it is only just under the conditions that the benefits outweigh the costs. Figuring out what parameters this happens would require a good degree of independent scientific testing, although it would still be somewhat subjective. If there are no conditions under which the patent system is a net benefit, than the only just action is to get rid of the patent system. I personally wouldn't be surprised if this is the case. The mechanisms of getting the patent system to work are very complex, and yet the basics of the system predate anything that could be remotely considered modern economics or psychology.

geee (1)

unity100 (970058) | more than 3 years ago | (#34156312)

apparently the parent had contradicted with someone's political religion.

Couple things (1)

theantipop (803016) | more than 3 years ago | (#34154476)

From the USPTO memo:

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 [erikjheels.com] might help a bit.

OMFG, where did you people learn to read?! (5, Informative)

Dachannien (617929) | more than 3 years ago | (#34154518)

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.

Re:OMFG, where did you people learn to read?! (1)

Dachannien (617929) | more than 3 years ago | (#34154528)

Oops. Should be "getting rid of any of the seven KSR rationales".

Re:OMFG, where did you people learn to read?! (2, Insightful)

Bigjeff5 (1143585) | more than 3 years ago | (#34154690)

Damnit, you just had to go and ruin it didn't you?

What with your reading TFA and all. Punk.

Don't bring your stupid facts into this discussion, we don't want them!

Seriously, summary is absolutely incorrect (2, Insightful)

Theaetetus (590071) | more than 3 years ago | (#34154802)

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.

Re:OMFG, where did you people learn to read?! (2, Informative)

Bigjeff5 (1143585) | more than 3 years ago | (#34154830)

Replying again, I know, but it looks like TFA really jumped the gun big time. I only skimmed it, but it seems pretty clear to me that the 2010 guidelines only frame what patent officers are supposed to do once they've chosen one of the seven rationals laid out in the 2007 guidelines. It's a set of guidelines for applying the 2007 guidelines, it isn't a change in the rules in any way that I could tell.

This is further made clear by the fact that the 2010 guidelines are completely, 100% unenforced. It's nothing more than advice. From TFA:

This 2010 KSR Guidelines Update does not constitute substantive rule making and hence does not have the force and effect of law. It has been developed as a matter of internal Office management and is not intended to create any right or benefit, substantive or procedural, enforceable by any party against the Office. Rejections will continue to be based upon the substantive law, and it is these rejections that are appealable. Consequently, any failure by Office personnel to follow this 2010 KSR Guidelines Update is neither appealable nor petitionable.

And further down, right after spelling out the seven rationals in the 2007 KSR Guidelines, they make it pretty clear that all those rationals are still in play:

It is important for Office personnel to recognize that when they do choose to formulate an obviousness rejection using one of the rationales suggested by the Supreme Court in KSR and discussed in the 2007 KSR Guidelines, they are to adhere to the instructions provided in the MPEP regarding the necessary factual findings. However, the 2007 KSR Guidelines also stressed that while the Graham inquiries and the associated reasoning are crucial to a proper obviousness determination, the Supreme Court in KSR did not place any limit on the particular approach to be taken to formulate the line of reasoning. In other words, the KSR decision is not to be seen as replacing a single test for obviousness–the TSM test–with the seven rationales listed in the 2007 KSR Guidelines. See MPEP 2141 and 2143 (8th ed. 2001) (Rev. 8, July 2010) (references to the MPEP are to Revision 8 of the 8th Edition of the MPEP unless otherwise indicated).

The document basically just reminds the patent officers to have all their ducks in a row before rejecting a patent, and gives some examples from case law. Given that the new guidelines have only been in effect for three years, it's not surprising they don't have examples for every rational.

Here're some explanations (1)

ciaran_o_riordan (662132) | more than 3 years ago | (#34156808)

Here's why TFA summary seems to be correct:

From http://www.ipeg.eu/blog/?p=1742 [www.ipeg.eu]

According to the 2007 Guidelines, however, in addition to TSM there came into being with KSR six other tests for obviousness. These tests gave the examiners six new ways to reject claims and so help achieve the reduction in the patent allowance rate which was such an important goal for the PTO under its then-Director, Jon Dudas.
[...]
In the 2010 Guidelines, however, only two of the new tests for obviousness appear to survive.

And...

This is in line with the general trend of the PTO under Director Kappos to [...] and give applicants greater opportunities to obtain allowance of claims.

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 [patentlyo.com]

The 18-page guidelines do not have the force of law, but will impact how examiners judge obviousness in practice.

If anyone wants to explain that those sites called it wrong, I'm all ears.

No more prior art?! (-1, Troll)

dissy (172727) | more than 3 years ago | (#34154534)

"Whereas the 2007 guidelines said that an idea is considered obvious if it consisted of '[predictable] variations [...] the new guidelines do away with those tests."

Sweet, no more prior art test.

Time to actually submit a patent on the method of submitting a patent, and do away with this mess.
Thankfully the fact that method has been in use for a long time no longer matters!

Well FINALLY (0, Troll)

Arancaytar (966377) | more than 3 years ago | (#34154562)

There are far too few idiotic patents submitted nowadays. These elitist barriers of entry have to stop!

Can't see how it will make any difference... (0, Troll)

russotto (537200) | more than 3 years ago | (#34154632)

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.

patent system is fucked up (0)

Anonymous Coward | more than 3 years ago | (#34154778)

nuff said

Stupid Article (5, Informative)

the eric conspiracy (20178) | more than 3 years ago | (#34155018)

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.

Needs a "TFA is Wrong" tag (2, Insightful)

Bigjeff5 (1143585) | more than 3 years ago | (#34155022)

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).

Its a wash (0)

Anonymous Coward | more than 3 years ago | (#34155114)

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.

Operationalize obviousness (1)

NoSig (1919688) | more than 3 years ago | (#34155122)

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 [wikipedia.org] . 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.

Re:Operationalize obviousness (1)

king neckbeard (1801738) | more than 3 years ago | (#34156804)

A day or so seem like a very short time for a twenty year monopoly. While not something easy to measure, I would say that something would be expected to otherwise not be available to the market for at least 3 to 5 years for it to justify that period of exclusivity.

Patent patenting (0, Offtopic)

ChristofferC (1025109) | more than 3 years ago | (#34155136)

Somebody should patent the process of filing a patent.

What we really need (1)

Beefpatrol (1080553) | more than 3 years ago | (#34155310)

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.

Standards? (0)

Anonymous Coward | more than 3 years ago | (#34155594)

USPTO Decides To Lower Obviousness Standards

The USPTO has standards?

A better test - propose problem to ~10 experts (0)

Anonymous Coward | more than 3 years ago | (#34156276)

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.)

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