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Supreme Court to Rule on 'Obvious' Patents

ScuttleMonkey posted more than 8 years ago | from the fluent-in-loopholeanese dept.

242

davidwr writes "News.com reports the U.S. Supreme Court will take up KSR v. Teleflex, a patent case in which the defense is arguing the patent is obvious and should be thrown out. The case hinges on a 1952 provision of patent law. Interestingly, several major IT firms are supporting the defense."

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Very narrow ruling (5, Insightful)

ryants (310088) | more than 8 years ago | (#15610536)

I'm not a Supreme Court expert (I'm not even an American), but I can't imagine a ruling that would allow people to start challenging patents on "obviousness". I imagine the ruling will be very narrowly confined to just the circumstances of this particular case.

Re:Very narrow ruling (1, Insightful)

stubear (130454) | more than 8 years ago | (#15610573)

The Supreme Court does to rule on narrow issues. If a case makes it to our Supreme Court, prepare for a shift in our legal system.

Re:Very narrow ruling (1)

stubear (130454) | more than 8 years ago | (#15610583)

that should read, "The Supreme Court does not...".

Re:Very narrow ruling (5, Informative)

Comatose51 (687974) | more than 8 years ago | (#15610670)

Yes it does actually. It has ruled in the past about the meaning of a comma in some sentence of our tax code. That's how narrow it can get. In fact, the SCOTUS tend not to overrule previous rulings but rather distinguish a current case from a previous case. One of the goals of our legal system is for it to be predictable. SCOTUS tries to uphold that as much as possible. Part of the reason the Federal circuit was created specifically for patent laws is to prevent forum shopping which has a tendency to make patent cases unpredictable. IANAL.

Re:Very narrow ruling (3, Insightful)

Vengie (533896) | more than 8 years ago | (#15610766)

Please start your posts with IANAL instead of ending it with IANAL. That way, those of us that actually went to law school don't have to get angry when you miss the mark. Thanks. It's not your fault, but in all honesty, I don't pretend to understand things I dont understand the finer mechanics of. SCOTUS rules on major issues all the times, and regularly re-interprets precedent.

Re:Very narrow ruling (-1, Flamebait)

ABeowulfCluster (854634) | more than 8 years ago | (#15610904)

IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL The Supreme Court has ruled on the proper placement of IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL

Re:Very narrow ruling (5, Funny)

Anonymous Coward | more than 8 years ago | (#15610921)

Please start your posts with IANAL instead of ending it with IANAL.

And please start your posts with "I am anal" so we know we can avoid trolling.

Re:Very narrow ruling (0, Flamebait)

Khyber (864651) | more than 8 years ago | (#15611266)

I am anal is redundant. If you're going to be a lawyer you could at least understand redundancy in acronyms and wording of legal phrases, it's what you're trained in for crying otu loud! (I'm typing this with a lawyar nagging behind my ear, forgive me!) Hell, we learned that in Latin class in high school. Ecce! Canis liberi ed comedit! Come on!

Re:Very narrow ruling (0, Flamebait)

jmitchel!jmitchel.co (254506) | more than 8 years ago | (#15610934)

OH! You've "went to law school". You do realize that on Slashdot, claiming IAAL and a couple bux might buy you a cup of bad coffee. But GOD! they might throw in a doughnut for 70 cents if it weren't for idiots like him who forget to admit they're not lawyers until the end of their Slashdot posts!

Re:Very narrow ruling (1)

DrSkwid (118965) | more than 8 years ago | (#15611120)

Dude, this is /. it is best to assume NO-ONE is a lawyer, even if they say they are !

FYI. I went to comprehensive school.

Re:Very narrow ruling (0, Redundant)

PHPfanboy (841183) | more than 8 years ago | (#15611140)

Dude, this is the internet. Best to assume all people are dogs, even if they say they aren't.

Re:Very narrow ruling (0)

Ohreally_factor (593551) | more than 8 years ago | (#15610785)

In fact, the new Chief Justice what's-his-name recently spoke about the desirability of narrow rulings. A byproduct of narrow rulings is a court that can achieve consensus and consensus reinforces the validity of the interpretation.

SCOTUS? (5, Funny)

OldManAndTheC++ (723450) | more than 8 years ago | (#15611043)

Ugh. What a horrible acronym. It sounds like some nasty disease:

Doctor: So, what seems to be the problem?
Patient: Well, I have this persistent burning sensation, um, "down there".
Doctor: I see. Do you also feel as if a hundred tiny spiders are crawling up your anus?
Patient: Wtf!? How did you know that!?
Doctor: Uh-huh. Sounds like SCOTUS. You'd better drop your pants. I'll get the probe ...

Re:SCOTUS? (0)

Anonymous Coward | more than 8 years ago | (#15611239)

Please begin your posts with the acronym you are making fun of, so that we don't read the joke thinking you are talking about "IANAL" instead of "SCOTUS".

Re:Very narrow ruling (1)

kf6auf (719514) | more than 8 years ago | (#15611269)

The other reason Reagan created a federal circuit specifically for intellectual property issues is so he could appoint all the judges since they liberal judges weren't helping his policy much. Everything else just helped him sell the idea to everyone else.

Re:Very narrow ruling (5, Insightful)

happyemoticon (543015) | more than 8 years ago | (#15610582)

I didn't RTFA, but supreme court rulings can often have very far-reaching implications. For example, the case "Marbury vs Madison" established the tradition of judicial review. In some other legislative systems, all laws are automatically in harmony with the constitution. However, due to that one case and a really ballsy Chief Justice, courts in general and the Supreme Court in particular can essentially say that a law is bogus and strike it from the law. Then there's Brown vs Board of Education, which (after much fighting, ignoring, pain, suffering, and tribulation) paved the way for equal access to education and public services regardless of ethnicity.

If I had to guess, whatever the outcome, a hard battle is still ahead for those opposed to stupid patents - but depending on how it's worded, this could be a turning point.

Ruth Bader Ginsburg (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15610772)

She's so fucking cute and sweet. I'd treat her to some fancy restaurant, then take a long romantic walk with her, holding hands and talking about philosophy, art and dreams. Then I'd invite her to my home and ravage her hot ass for hours, and forcing my cock down her throat so she choked on both the throbbing cock and her own rectal juice. I'd then proceed to cum on her cute innocent face. Then, as the ultimate love gift, I'd carry her in my arms to the tub and let my piss wash away the semen and last dignity from her. I'd whisper "I love you" and give her a tender smile, and cut her throat from ear to ear with a knife. Covered in her own warm blood, she'd look straight into my very soul, forgiving, understanding. A bubble from blood and saliva would burst between her lips, then she'd die. After some additional lovemaking, I'd stuff her in a bin bag. Three Weeks later, some playing children will find her mutilated and desecrated body in the forest. They will be scarred for life.

Re:Very narrow ruling (0)

Anonymous Coward | more than 8 years ago | (#15611015)

Just a note: Brown vs. Board of Education was actually a reversal of Plessy vs. Ferguson, the decision in which the US Supreme Court blessed the doctrine of "separate but equal" and caused much of the misery you cite. Maybe Brown was a noble gesture, or maybe it was a lame, long-overdue correction of a flagrant mistake that caused untold misery in the USA.

Re:Very narrow ruling (2, Informative)

anagama (611277) | more than 8 years ago | (#15611016)

Don't bother RTFA. The FA is terribly written and confusing. For example:

That court has ruled, for instance, that even "a combination of preexisting, off-the-shelf components in which each component performs exactly the same function that it had been known and was designed to perform," KSR wrote in its petition for review by the Supreme Court (click for PDF).

That's an entire "paragraph" from the article. Notice how the main sentence goes nowhere? Essentially it says "the court has ruled that." Ruled what? All in all, this whole situation is appalling. Obvious patents are appalling and TFA is appalling.

Re:Very narrow ruling (5, Interesting)

darkmeridian (119044) | more than 8 years ago | (#15610591)

Nope. The Supreme Court last visited patents when it decided Markman in 1997. The Supreme Court did not take this case along with Metabolite just to rule narrowly on the facts. Indeed, it the fact-specific nature of patent courts that has been one of the largest complaints the patent bar has had with the Federal Circuit. Most notably, the Fed. Circuit's treatment of claim construction has been abysmal. Claim construction is when the judge decides exactly what the patent purports to have patented. Obviously, this is crucial and in many instances result-determining. Markman said it was the judge's job to interpret patent claims. The Federal Circuit then refused to take appeals of claim constructions before the entire trial had concluded. Once the entire 2-3 year trial has ended, the loser can appeal the claim construction to the Federal Circuit. About 40% of the cases on appeal on this point are overruled. So that's 2-3 years of litigation down the drain.

I'm guessing the US Supreme Court wants to make it easier to beat down patents. Instead of making everything dependent on whether a patent for a three-bladed razor is infringed by a razor with four blades, the question is whether the subject matter is obvious or unpatentable, which is less depdendent on the ultra-fact specific lawyer games everyone plays on what "includes" means in a patent.

Re:Very narrow ruling (2, Informative)

onemorechip (816444) | more than 8 years ago | (#15610922)

he Supreme Court last visited patents when it decided Markman in 1997.


Aren't you a little out of date [cornell.edu] ?

Precent (5, Insightful)

EmbeddedJanitor (597831) | more than 8 years ago | (#15610592)

While the ruling is likely to be narrowly confined, it will establish a current precedent for the interpretation of "obvious". This could have significant implications for future rulings.

Generally, most recent patent attacks have been prior-art based. This potentially provides a new line of attack.

Re:Very narrow ruling (5, Insightful)

mattmacf (901678) | more than 8 years ago | (#15610608)

I can't imagine a ruling that would allow people to start challenging patents on "obviousness"
Really? I thought that by definition a valid patent must satisfy the requirement of being non-obvious. The problem ATM isn't with the judicial system. Generally the patents that make it into court are ruled on appropriately, but the cost of challenging a meaningless patent in court is much more than having to license the "obvious" patent. What KSR is looking for is a change in the definition of what consitiutes an obvious patent. From the CNET article:
In a brief supporting KSR's arguments (click for PDF), Microsoft and Cisco charged that the current test applied by the Federal Circuit "hurts innovation" because it establishes "far too lenient a standard for patentability." Cisco has even built up a portfolio of patents for "defensive purposes" in order to "neutralize" a proliferation of trivial patents, the brief said.
Hopefully the Supreme Court will adjust the definition of "obviousness" and these changes will make their way into the patent system itself. What we really need is a system that will routinely reject patents that are blatantly obvious, negating the patent trolling mess we have now.

Re:Very narrow ruling (1)

Ohreally_factor (593551) | more than 8 years ago | (#15610821)

The changes to the patent system itself that you suggest will only happen thru an act of Congress. While the courts can overturn a patent office decision, they can't impose their will directly on the patent office.

All the Supremes can do is rule on this particular case, which will give guidance and a precedent for lower courts to follow. Unless the patent office itself were to be brought before the court (somehow), the court cannot dictate to it. That would be infringing on the Executive Branch, which operates the patent office (according to the laws enacted by Congress).

Re:Very narrow ruling (1)

norton_I (64015) | more than 8 years ago | (#15611028)

I am not sure how this might work in this instance, but when laws are delclared unconstitutional, it is in a lawsuit targeting the executive branch, enjoining them from enforcing a law. While on paper it looks like such a ruling only affect the individual case at hand, precedent dictates that withing the guilelines of the verdict, it applies to all infractions of the struck down law. Presumably, something similar would happen if the verdict of a patent infringment declared that the criteria used by the patent office in accepting a patent were not harmonious with the constitutional mandate to protect IP and/or the patent laws passed by the legislature, the effect would be to change the way the USPTO issues patents. This is possible even if the ruling if relatively narrow.

Re:Very narrow ruling (3, Insightful)

Ohreally_factor (593551) | more than 8 years ago | (#15611196)

That would still send it back to Congress, if a patent law were found unconstitutional. It would be up to Congress to pass a new law that was constitutional. It is possible that it could happen this way, but it's highly improbable, due to the nature of the claim. The appeal itself is fairly narrow, and is not claiming that the law itself is unconstitutional. Rather, the grounds for the appeal are that a lower court did not use a proper test to determine the validity of a patent, i.e., the test for obviousness. In this case, the defendant is claiming that using off the shelf parts to create a brake pedal is an obvious idea to someone in the trade, and therefore not patentable. If they prevail, this will have far reaching implications, to be sure. But it's highly doubtful that the court will rule broadly on this issue, especially because the claim itself is fairly narrow. Don't expect the patent system to be turned on its ear.

It wouldn't necessarily apply to any patents that we might think of as obvious, unless those patents were the subject of litigation before a court, and it might only apply to patents that involve off the shelf components. Yes, this is important, but even if the defendant wins, it's just one chip out of many we need to reform the patent system. It would be a great victory, but it's effects will still be limited.

In any case, I believe that the court is going to rule narrowly. Chief Justice Roberts spoke recently on the subject of broad and narrow rulings, and said he preferred narrow rulings. One reason for this was that narrow rulings tend to get greater consensus among the Supremes rather than split decisions. Consensus implies validity while a divided court implies controversy, i.e., the matter isn't settled with finality.

Re:Very narrow ruling (4, Funny)

Anonymous Coward | more than 8 years ago | (#15611075)

All the Supremes can do is rule on this particular case

Meanwhile, Diana Ross, Smokey Robinson, and the Miracles all dissented.

Re:Very narrow ruling (0)

Planesdragon (210349) | more than 8 years ago | (#15610625)

I can't imagine a ruling that would allow people to start challenging patents on "obviousness".

You apparantly don't live in a nation of law and judicial review.

the case would never have gotten to the supreme court if we weren't allowed to challenge a patent as being obvious. It's part of the law, both in America and in every nation whose laws have shaped to adhere to ours (and vice versa). The question here is, HOW obvious the patent has to be to use.

Re:Very narrow ruling (1)

Kr3m3Puff (413047) | more than 8 years ago | (#15610667)

Actually it is hard for the Supream Court to ever weigh in on a narrow set of rules. Here they have agreed to take on the question of what is "obvious" and that is what is being argued in front of the court. This ruling will have a large impact on that the implications of the 1952 patent law should consider "obvious".

The Supream Court always decides the case based on the point of law being argued. They usually never broaden or narrow the scope. Often times you can be "right" but simply not have asked the proper question to the court, therefore not getting the answer you seek. It is a fun and interesting business...

It is interesting that it basically says someone who is skilled in the particular area would consider the invention obvious should not be awarded a patent. It should be interesting how much

Re:Very narrow ruling (5, Interesting)

IconBasedIdea (838710) | more than 8 years ago | (#15610726)

That is not the case with the Roberts court. The Clarence Hill lethal injection case got a very narrow ruling earlier this month, as was the MGM/Grokster ruling. Narrow court rulings are far from rare, and as the Cheif Justice himself points out, narrow rulings are more likely to be unanimous decisions, or close to it. From a speech this month at Georgetown:

"If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case. Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."

Re:Very narrow ruling (1)

ClamIAm (926466) | more than 8 years ago | (#15610762)

Roberts court


I'm really wondering how much of a shift the new court will show in its rulings. I don't know if Rhenquist was tons different from Roberts/Alito, but I certainly believe they'll differ from O'Connor.

RTFA Very Carefully, It's poorly worded (1, Informative)

Anonymous Coward | more than 8 years ago | (#15610793)

KSR was accused of patent infringement on an obvious patent by Teleflex for pedals.

The appeals court ruled that the Teleflex patent stands because even a combination of off the shelf parts used in a novel way is nonobvious.

KSR Disagrees and is appealing to SCOTUS.

Cisco and Microsoft are coming in on the side of KSR, they believe "off the shelf in a novel way" is too low of a standard for patents.

Assuming they make a ruling and don't shove it off to the Congress, a ruling for KSR will have a wide ranging positive impact. Microsoft and Cisco will not have to spend as much patenting the obvious, and dealing with patent litigation, which costs a lot. Additionally it might free up resources for the Patent Office, perhaps allowing them a more thorough interpretation of those that do go to the office. Of course the patent office may not like this, it might decrease the yearly fees they take from prospective patenters.

Re:RTFA Very Carefully, It's poorly worded (4, Interesting)

norton_I (64015) | more than 8 years ago | (#15611004)

I believe (without much in the way of of evidence to back this up) that the costs of running the patent office are greater than the application fees -- therefore might be to their financial advantage to have fewer applications. Given the current backlog, any reduction in applications will take 5-10 years to show up in reduced personel, so likely would not require firing people, but merely not replacing examiners who retire or quit over that time frame.

It really is disgraceful the way the patent office is forced to operate -- they are given too little time to examine patents, the cost of rejecting them is even more time that they don't have, and they are unable to turn applications around in a timely fashion. I don't know how to calculate the cost to our economy of this, but I suspect it is high.

Re:Very narrow ruling (3, Insightful)

Internet Ronin (919897) | more than 8 years ago | (#15610801)

Obviousness is very strictly constructed. In fact, a patent infringer that obtains personal success from their infringing item makes the patent non-obvious. RIM found this out when they argued obviousness against NTP. They claimed NTP's patents were too obvious to be patented (such so that a person reasonably strong in that field would be able to do it on their own). NTP argued, with supporting precedent, that because the Blackberry Service was so successful the concept was non-obvious.

Much of the clamoring for patent reform can be solved by loosening standards that maintain entrenched patents. One way that can be achieved is to open up the definition of obviousness, thus allowing some patents to be more easily overturned. There are hundreds of standards that can be lowered, or opened if you prefer, allowing for more entrenched patents to be overturned.

Re:Very narrow ruling (1)

ollj (966671) | more than 8 years ago | (#15610895)

A wild Lawlimon appears! Lawlimon attacks with "obviousness".

Re:Very narrow ruling (4, Informative)

Arker (91948) | more than 8 years ago | (#15611046)

I can't imagine a ruling that would allow people to start challenging patents on "obviousness".

I have a feeling the above post was written specifically to show how ignorant many of the moderators are. Plus 5 "insightful" - hah. Obviousness is and has always been a valid challenge to patents in this country, and to the best of my knowledge all countries. It's a specific requirement that in order to be patented, an invention must be non-obvious, and many court battles have been fought over whether or not a particular patent was obvious and thus invalid. So that's just... a rather bizaare comment, however you look at it.

The issue in this case is, however, narrow. The federal appeals court that gets ALL patent appeals (and this is a problem in its own right) has set forth a rather narrow and difficult criteria for what constitutes obviousness, resulting in many things that are 'obvious' in the normal meanings of the word being ruled 'non-obvious' legally, and the appelants are trying to get the supremes to over-rule that and impose more sane criteria.

I wish them luck, but even a good ruling here is unlikely to significantly reduce the burden the patent office is imposing on the general good.

Re:Very narrow ruling (1)

ajs318 (655362) | more than 8 years ago | (#15611324)

I can't imagine a ruling that would allow people to start challenging patents on "obviousness"
Where have you been living? Obviety is probably the number one reason not to grant a patent!

Re:Very narrow ruling (2, Insightful)

bytesex (112972) | more than 8 years ago | (#15611394)

I'm not from the US either, but I understand that the power of 'precedent' is very strong in the US legal system (ruled like so-and-so once for this law under these circumstances, must rule like so-and-so forever for this law under comparable circumstances) above a certain level of court. This is not so much the case in countries not based on anglo-saxon common law, where judges are much more free to judge based on the circumstances of a particular case.

Goddman it (5, Funny)

Gleenie (412916) | more than 8 years ago | (#15610538)

I've already patented the use of obvious patents. Does that mean that my fellow cynics can have my patent struck down in an ironic twist of fate?

Re:Goddman it (5, Funny)

x2A (858210) | more than 8 years ago | (#15610643)

Well I, more cleverly (therefore less obviously), patented unobvious patents, which means that all patents must pay royalties to me, or else be struck down in an moronic twist of fate :-p

Re:Goddman it (5, Interesting)

plover (150551) | more than 8 years ago | (#15610682)

I've already patented the use of obvious patents.

Thomas Edison beat you to this a hundred years ago.

The story I heard was that he was arguing before the court that some invention was not obvious. He placed a raw egg on the bench in front of the judges, and challenged the judges to make it stand on its pointy end. They tried balancing it, shaking it to break up the yolk, spinning it, and finally declared the task impossible. Mr. Edison took the egg and crushed the pointy end of the eggshell down on the bench, where he easily stood it on its end. One of the judges said "well, that's obvious." Mr. Edison pointed out that, not thirty seconds prior, they had declared the task impossible but now it's obvious. And that's why his patent should stand.

Of course now that I've typed it up, I can find no reference to the story. Typical me. :-( Can someone help me out?

Re:Goddman it (5, Informative)

Bostik (92589) | more than 8 years ago | (#15610735)

Of course now that I've typed it up, I can find no reference to the story.

No wonder. You mixed the person. That story is usually associated with Columbus. Hell, there's even a Wikipedia entry [wikipedia.org] of the thing.

You would need a Reader's Digest anecdote to find something older :)

Re:Goddman it (1)

Captain_Chaos (103843) | more than 8 years ago | (#15611325)

That story is usually associated with Columbus

In Dutch that's even an expression: "het ei van Columbus" ("Columbus' egg"), meaning a simple solution to a problem which is very obvious in hindsight.

Re:Goddman it (2, Insightful)

AusIV (950840) | more than 8 years ago | (#15610743)

Yes, but just because a judge can't figure out how to make thumbnails on a web page that you can click to see a bigger picture doesn't mean it's not an obvious patent. I think it's hard to say what is an isn't an obvious patent. It would need some kind of definition to hold up consistently.

Re:Goddman it (1, Insightful)

Digital Vomit (891734) | more than 8 years ago | (#15610782)

Someone has already posted that it was Columbus and not Edison who did this trick, but, used as an argument for the non-obviousness of certain patents, this example is terrible. A more modern variant might be to challenge people to come up with a better compression algorithm, then you presenting your "better" compression algorithm by smashing the HDD flat with a sledgehammer. Outside-the-box thinking!

It's a clever trick that belongs in a Mind Trap [boardgamegeek.com] game; nothing more. If Edison really had used that egg trick as a patent defense, he would've been a complete asshat for doing so (although, from what I've heard of him, he was a complete asshat nonetheless).

Re:Goddman it (5, Funny)

Tablizer (95088) | more than 8 years ago | (#15610784)

Mr. Edison took the egg and crushed the pointy end of the eggshell down on the bench, where he easily stood it on its end.

My toddler once did that to an entire carton of eggs. Does that make him smarter than the judges? (Although it wasn't quite the tip, but about half the egg.)
       

Re:Goddman it (2, Interesting)

Quirk (36086) | more than 8 years ago | (#15610854)

The earliest historical rendition of the anecdote I'm familiar with deals withChristopher Columbus [google.ca] . Columbus asked his detractors to stand a hardboiled egg on end, when they failed he cracked the base of the egg and pointed out that all problems seem intractable until a solution is provided.

The Columbus' anecdote seems to be true but I'm sure somewhere in the dark, dusty toe-stubbing recesses of my memory there is another anecdote of the same content dating back to Roman times. Standing an egg on end was said to be possible only on "the vernal and autumnal equinox [cmich.edu] , when the sun crosses the equator, making night and day equal on all parts of the earth."

Re:Goddman it (3, Funny)

mlush (620447) | more than 8 years ago | (#15611100)

For some reason that story puts me in mind of the current issue of The Order of the Stick [giantitp.com]

Re:Goddman it (1)

kozumik (946298) | more than 8 years ago | (#15611123)

What a silly example. The test relies on trickery and a deliberate misunderstanding of the rules is all. The only thing invented was a good con job.

"Not surprisingly" (0)

Frosty Piss (770223) | more than 8 years ago | (#15610540)

Interestingly, several major IT firms are supporting the defense."

I guess it is "interesting", but I think I would have said "Not surprisingly". Big name IT stands to lose a lot if the patenting of "obvious" ideas is struck down.

Re:"Not surprisingly" (2, Funny)

plasmacutter (901737) | more than 8 years ago | (#15610543)

huh?

theyre comming in on the side of the defense.. which is being attacked by plaintiffs who have obvious patents..

Oo.. I believe you misinterpreted?

Re:"Not surprisingly" (0)

Anonymous Coward | more than 8 years ago | (#15610665)

More properly, defendant KSR won judgement at the lower court; Teleflex appealed and won reversal; KSR petitioned SCOTUS and was granted cert. Therefore the article summary is completely misleading if not legally illiterate: it should read that "several major IT firms have jointly filed an amicus brief in support of petitioner KSR's position that the Federal Circuit has been improperly applying the 'non-obviousness' test of the 1952 Patent Act by developing a 'suggestion test' that departs from the statutory mandate that the test be applied from the perspective of a person having ordinary skill in the art (see ACS Hospital Systems, Inc. v. Montefiore Hospital, 732 F.2d 1572 (Fed.Cir. 1984))."

About damned time this made it to the Supremes. Let's see if "strict constructionism" wins the day.

-WatchfulBabbler

Re:"Not surprisingly" (3, Funny)

Anonymous Coward | more than 8 years ago | (#15610552)

Surprise! You're wrong! The IT firms are against patenting of "obvious" ideas.

Re:"Not surprisingly" (5, Interesting)

Daneboy (315359) | more than 8 years ago | (#15610656)

No, actually he's right and you're mistaken. It's clear both from TFA and from the posted summary that (a) the DEFENSE is saying that obvious patents should be thrown out, and (b) some big IT firms including Cisco are supporting the DEFENSE in this case.

This isn't really all that surprising, if you think about it. I mean, products like Cisco routers or Microsoft Windows do have a huge number of really obvious features -- And I'm sure the savings would be considerable if they didn't have to hire an army of lawyers to check if every single feature was unpatented (thus freeing up said lawyers to pursue anti-piracy litigation against their users...)

Re:"Not surprisingly" (1)

zippthorne (748122) | more than 8 years ago | (#15610747)

How is being against patenting the obvious different from supporting the entity arguing for not patenting the obvious?

Re:"Not surprisingly" (2, Funny)

bradkittenbrink (608877) | more than 8 years ago | (#15610829)

HOLY SHIT! Someone correctly parsed both the article summary and the post they were replying to! This is a red letter day for slashdot.

Re:"Not surprisingly" (0)

Anonymous Coward | more than 8 years ago | (#15610912)

The difference between being against patenting the obvious and supporting the entity arguing for not patenting the obvious is patently obvious for all to see, and therefore should not have been patented in the first place.

Unsurprising. (5, Interesting)

porkchop_d_clown (39923) | more than 8 years ago | (#15610555)

No single company can afford to get off the patent treadmill because they would be vulnerable to attack - but anything that forced the entire industry to "disarm" would be a win for them all.

Re:Unsurprising. (1)

ween14 (827520) | more than 8 years ago | (#15610611)

I disagree with that. In fact the large companies stand to lose a lot if obvious patents are struck down.

It is very similar to the arms race, with the introduction of nukes all of the power was put in the hands of very few countries. No smaller country could compete because they couldn't make their own nukes. With patents, small companies can't compete because they can't reach massive cross licensing, aka cold war, style agreements with the large companies because they don't have thousands of patents.

Re:Unsurprising. (5, Insightful)

1ucius (697592) | more than 8 years ago | (#15610642)

I think you are misreading the patent-market. . . Big IT is the victim of crappy patents. Who to you think the patent trolls go after? It's not the one man IT shop with $450 in its bank account. It's Microsoft with $40 billion in cash.

Re:Unsurprising. (4, Insightful)

Arker (91948) | more than 8 years ago | (#15611030)

I think you are misreading the patent-market. . . Big IT is the victim of crappy patents. Who to you think the patent trolls go after? It's not the one man IT shop with $450 in its bank account. It's Microsoft with $40 billion in cash.

Actually, both get smacked on occasion. But clearly, the deep pockets are the obvious target for the patent trolls. The smaller guys mostly get hit when they're competing with someone else... like the guy that makes free software to control model trains. His proprietary competitor apparently lurked on his mailing list awhile, then ran off to patent a bunch of stuff discussed there, then sent a cease-and-desist order. I have a feeling we'll be seeing a lot more of that in the future too.

Re:Unsurprising. (0)

Anonymous Coward | more than 8 years ago | (#15611125)

Assholes like that should be beaten with a stick that does not follow the rule of the thumb. And be thrown to jackals afterwards.

Re:Unsurprising. (0)

Anonymous Coward | more than 8 years ago | (#15611156)

Actually, it is both.

It is common for patent trolls to look for smaller companies and go after them first. Since most small companies cannot afford litigation, they settle and license. If it does go to court, and they get a favorable ruling, that then sets precedent for use in going after larger companies.

Re:Unsurprising. (1)

pyros (61399) | more than 8 years ago | (#15610693)

In fact the large companies stand to lose a lot if obvious patents are struck down.

I'm guessing Microsoft would have preferred that the USPTO declined the Eolas patent for broswer plugins, since that petant cost Microsoft ~0.5 billion dollars. Large companies will lose a number of patents, but so will the IP companies who use the sue-rich-companies-for-infringing-absurdly-broad-a nd-obvious-patents business plan. So it evens out with the effect that all companies, large and small, don't have to worry about how many clicks it takes a customer to buy something from their web site.

Re:Unsurprising. (1)

at_slashdot (674436) | more than 8 years ago | (#15610634)

"but anything that forced the entire industry to "disarm" would be a win for them all." ...and a huge loss for lawyers. Just think about it they need to eat too.

Re:Unsurprising. (4, Funny)

x2A (858210) | more than 8 years ago | (#15610671)

"they need to eat too"

You've obviously never properly got to know any lawyers. They only pretend to eat so we believe they're human ;-)

lawyers (0)

Anonymous Coward | more than 8 years ago | (#15610765)

Lawyers aren't born, they're extruded.

Catfish (0)

Anonymous Coward | more than 8 years ago | (#15610695)

and a huge loss for lawyers. Just think about it they need to eat too.

There will never be a shortage of forage for the bottomfeeders.

Re:Unsurprising. (1)

grilled-cheese (889107) | more than 8 years ago | (#15611026)

Is anyone else seeing a similarity between the patent treadmil and nuclear war? If a company is to survive, they mist patent grab as much as possible, thus blocking innovation. And since everyone is doing it, it compounds the problem. The only viable solution is for total patent disarmement to open up research, trade, and commerce of items.

Clogged Dockets (3, Insightful)

adageable (972913) | more than 8 years ago | (#15610558)

Certainly, someone needs to reign in the patents, but won't this lead to just more and more litigation? The real problem, it seems, is that too many patents are being issued! I suppose this helps rescind them, but could lead to a clogged docket, IMHO.

Re:Clogged Dockets (1)

x2A (858210) | more than 8 years ago | (#15610652)

Yeah but if you're confident that a patent is obvious enough, means you can just go ahead and use it anyway, knowing that any litigation that comes your way is only ever gonna get as far as the supreme court (jk)

Ordinary Skill? (4, Insightful)

CodeBuster (516420) | more than 8 years ago | (#15610586)

It was my understanding that United States patent law contains a provision covering the patentability of devices, ideas, methods, or techniques from any body of knowledge that would be generally known to a skilled practitioner of the trade or art in question (i.e. the so called "skilled practitioner" test for obvious patents or prior art). If it is patently obvious then in effect it cannot be patented.

Person having ordinary skill in the art [wikipedia.org]

Re:Ordinary Skill? (5, Insightful)

RowboatRobot (899380) | more than 8 years ago | (#15610614)

While that is true, the real concern here (as it is in any court case) is how the law is interpreted. By some recent actions of the patent office (especially in the biomedical industry) you'd think obvious clauses were non-existant, yet there are other fields (basic mechanics, for example) in which the patent office has been much more stringent. I'm not sure that in this case the supreme court has the power to do anything. Honestly, what power does it have to make sure the patent office enforces patents the way it sees fit? Have a judge breathing over every patent clerk's shoulder? Even if they overhaul and re-structure the entire department, the issue here is the need for a defined policy for each and every field, which is clearly not going to be laid out by the supreme court alone. Perhaps they could elect a committee to create better patent policy. (Surely more bureaucracy will fix this!)

Re:Ordinary Skill? (2, Interesting)

kozumik (946298) | more than 8 years ago | (#15611158)

> While that is true, the real concern here (as it is in any court case) is how the law is interpreted.

Right. I think this is less about a legal principle or fine point, and more about establishing guidelines for a more capable patent office which is better capable of determining the not always obvious enough.

In cutting edge fields like Biotech there are probably patent officers who award patents when in doubt, which makes sense due to their high value and possibility for appeal later, but still allows the possibility of frivilous patents and must bog down the courts and place a great burden on the industry.

good point (2, Interesting)

kozumik (946298) | more than 8 years ago | (#15611147)

I particularly liked your reference to "patently obvious" which is a term many people probably use without considering its meaning.

The general principles for determining what's "patently obvious" have existed for a long time. One could say that the definition of obviousness isn't itself obvious, but it should by now at least be common knowledge to skilled practitioners of the art i.e. the patent office and courts.

Re:Ordinary Skill? (1)

SuperMog2002 (702837) | more than 8 years ago | (#15611247)

I guess an example of this would be if, say, I came up with a new object-oriented implementation of bubble sort. Instead of swapping items inline, I would construct an instance of class Swapper. Swapper's constructor would take two Object parameters, and would have methods RetrieveFirst() that would return the second Object passed in and RetrieveSecond() that would return the first Object passed in (effectively swapping them). I then proceed to get a patent on this.

To a judge whos education is strictly law (and thus has no idea what the heck these object things are), being able to swap any two of them no matter what they are could very well sound ingenious. Polymorphism isn't exactly a concept you can really grasp without getting your hands dirty writing some code, and of course, I would go out of my way in writing this patent to explain polymorphism in a very confusing yet seemingly intellegent way (i.e. I sound smart but am over the judge's head). To this judge, my technique might sound brilliant.

However, the average Slashdotter should be able to immediately see that this is anything but briliant. I imagine most of us have done some hardcore object oriented design work before where you use object's to accomplish EVERYTHING. In that kind of work, the bubble sort iteself would be an object, the compare used to determine if two objects need to be sorted would be an object, and of course, the swap itself would be an object. Hello, that's fairly obvious in an object-oriented design mindset. (It can also be easily argued that using a constructed object to swap two objects is a retarded implementation, but I digress). Thus, to someone who is not a "skilled practitioner" in computer science/software engineering, this may sound like a non-obvious idea, but to an experienced computer scientist/software engineer, this is very obvious. A "skilled practitioner" thus would find it obvious, and the patent should be thrown out.

not obvious patents... O RLY? Patents. (-1, Troll)

jigjigga (903943) | more than 8 years ago | (#15610603)

Well we are using the net right? Choose your diction wisely :)

My prediction... (5, Insightful)

kcbrown (7426) | more than 8 years ago | (#15610629)

The Supreme Court will rule in such a way that the ruling does absolutely nothing to help with the mess that is now patents. They will claim that it's a problem for Congress.

There's precedent for this, namely the Eldred case, in which they basically ruled against Eldred on the same basis.

You can't count on the Supreme Court to rule well (that is, on the side of the People) on anything anymore.

Sigh.

Re:My prediction... (4, Insightful)

Tablizer (95088) | more than 8 years ago | (#15610759)

The Supreme Court will rule in such a way that the ruling does absolutely nothing to help with the mess that is now patents. They will claim that it's a problem for Congress.

It's the courts job to interpret existing laws. The "common practitioner" clause is Congress's own law in writing. I cannot see how they can turn that back on congress, unless perhaps it conflicts with something else Congress enacted (which happens all the time).
     

Re:My prediction... (-1, Troll)

Vengie (533896) | more than 8 years ago | (#15610778)

Were you paying attention when the court recently held that you didn't automatically get an injunction -- as principles of equity would not allow that? No, you weren't. You seem to have no clue what the hell you're talking about. Please, leave Supreme Court commentary to Dahlia and the rest of us that actually, say, have a legal education? Eldred has absolutely no precedential value here WHATSOEVER. jackass.

Re:My prediction... (2, Insightful)

Anonymous Coward | more than 8 years ago | (#15610841)

I'm beginning to understand why people hate lawyers.

I'll be blunt here... (1)

Firehed (942385) | more than 8 years ago | (#15610630)

About fucking time.

(well, unless "obvious" patents are allowed...)

Where's APPLE (0)

Anonymous Coward | more than 8 years ago | (#15610636)

Such an interpretation, KSR argued, isn't consistent with a provision of federal patent law that dates to 1952, which stipulates that an invention is not eligible for a patent if a "person having ordinary skill in the art" would consider it "obvious."

I consider the Click Wheel to be an "obvious" creation, and for the record, IAAEE. Does that mean that the deep pocketed albino will lose its patents any time soon?

Finally I can think about releasing my software (5, Insightful)

dino213b (949816) | more than 8 years ago | (#15610668)

Some reform is desparately needed; I suppose this is as good of a start as any. Software patents can severely diminish small companies and individuals from releasing software without fear and making some money out of it.

Imagine someone taking a patent out on a device that by means of a spring and plastic somehow disables and enables a machine by use of what is coined in the patent declaration as a "power" switch.

Talk about absurd! A similar analogy can be drawn from some software patents and as much as I hate to defend the borg, some of the recent Microsoft court loses seemed absurd at first look. Common procedures done in "office" software. Can someone really patent part of a document-database-exchange? See http://yro.slashdot.org/article.pl?sid=06/06/17/06 38233&from=rss [slashdot.org]

#ifdef angry
#include <standard_i_am_opinionated_and_ignorant_too_discla imer.h>
#endif

Amazon's 1-click buy (4, Insightful)

punkguitarist (962709) | more than 8 years ago | (#15610703)

Personally I think they should all together be abolished, but this is a good start - people are finally realising how stupid some of them are. Amazon.com has the "1-click buy" patent... now every other company must sell things in a two-click buy or greater. This is an example of an obvious patent, which should be abolished (amazon also holds a couple more like this).

Re:Amazon's 1-click buy (1)

ClamIAm (926466) | more than 8 years ago | (#15610779)

Amazon did sue Barnes and Noble. But hang on, even the FSF ended their boycott of Amazon [gnu.org] . It seems they haven't gone after anyone else.

Re:Amazon's 1-click buy (2, Interesting)

punkguitarist (962709) | more than 8 years ago | (#15610818)

I didn't know that, but I'm happy that they too must have realised how outragous this patent is. If they're no longer sueing over it, why have it? "Amazon has got a number of other menacing patents since then, but has not as yet used them for aggression" This statement means that they are still obtaining patents, but not showing aggression towards any infringers of the patent? If I am correct in assuming so, then it is useless to them, and goes straight back to our argument of getting rid of these kinds of patents. Maybe there are extremily innovative things that require patents (though I'm not convinced), but things like this, certainly do not fit into that catagory.

Re:Amazon's 1-click buy (1)

jnf (846084) | more than 8 years ago | (#15610994)

This basically means, 'dont piss us off because we have the patent, but so long as you are not terribly important to us we will remain indifferent'. It's not useless to them, its future ammo.

Re:Amazon's 1-click buy (1)

bky1701 (979071) | more than 8 years ago | (#15611129)

And about as good as ammo as those "ex-soviet" (made in china) nukes you buy in one click on Amazon!

Waste of time (5, Insightful)

rucs_hack (784150) | more than 8 years ago | (#15610740)

If obvious patents aren't allowed, then IT companies will simply start burying the patent office in such detailed applications that they won't be able to declare them obvious.

We are talking money here, lots and lots of money. There is no way that IT companies will roll over and stop patenting crap.

It costs less to get a patent then can be made from hijacking some succesful yet unsuspecting developer several years later (especially if they just roll over and settle). So what if some don't make it through? They'll just turn around and try again after some patent lawyer has worked his expensive magic on it.

Re:Waste of time (1)

DanTheLewis (742271) | more than 8 years ago | (#15610961)

The rule is obvious to a skilled practitioner, not obvious to a patent examiner.

Re:Waste of time (1)

rucs_hack (784150) | more than 8 years ago | (#15611000)

Then it seems that rule hasn't been applied well in the past when it comes to IT.

Frankly it seems to me that the only requirement for an american IT patant is that no-one else has patented it already, not non-obviousness. Microsoft managed to patent double clicking, didn't they, that's nuts.

http://www.newscientist.com/article.ns?id=dn5072 [newscientist.com]

To me that seems as absurd as patanting pressing a key on a keyboard twice.

Now the mouse itself, that was an amazing invention, but patenting ways to use it's button/s seems stupid.

Proper expert examination would surely stop the mass of overlapping patents that exist in the IT world too.

Re:Waste of time (1)

DanTheLewis (742271) | more than 8 years ago | (#15611111)

That's the sue-ee's argument all right, that the obviousness rule has not been applied well.

It's hard to say that this one thing would just fix the problem, though. Applying the obviousness test fairly means that the invention has to be pretty explicitly anticipated in the technical literature prior to the patent filing; this eliminates arbitrary guesswork where the court sees a discovery and says "but that's so obvious now that I see how it works." It's unfair to the inventor that actually comes up with a great, should-have-been-obvious idea that no one actually thought of. The article talks about this.

The paradox is that for something to fail the obviousness test, it has to be mentioned in the technical literature, but the technical literature, with the possible exception of textbooks, is geared toward specialization and originality, not the things experts find generic and obvious. And patenting is happening on the bleeding edge of technology, where standard textbooks haven't been written yet. So I don't think this is going to be the common-sense, but difficult-to-apply "I know it when I see it" ruling that will entirely eliminate goofy business-method patents like One-Click.

But these guys with the gas pedal patent would probably be out of luck.

Re:Waste of time (0)

Anonymous Coward | more than 8 years ago | (#15611422)

We are talking money here, lots and lots of money. There is no way that IT companies will roll over and stop patenting crap.

Of course there is. Fight money with money. Crap patents should be fined.

first po5t? (-1, Troll)

Anonymous Coward | more than 8 years ago | (#15610813)

Gas Pedals? (1)

n6kuy (172098) | more than 8 years ago | (#15610863)

So... What was that bit about "gas pedal technology"?

This isn't really about gas pedals on vehicles is it?

Amazon sob sob (0)

the100rabh (947158) | more than 8 years ago | (#15610899)

Hey man what will happen to one-click-purchase patent of Amazon. First of all u give these silly patents and then u have supreme court seems very useless and rusted system

Obvious (5, Informative)

lspd (566786) | more than 8 years ago | (#15610960)

The petition for writ of certiorari is an interesting read. From the description at news.com.com.com.com you'd get the impression that this is a clear case of the Federal Circuit court not applying clear standards that the SCOTUS has already laid out, but the petition makes it clear that the Federal Circuit believes the SCOTUS's previous decisions create an unworkable framework for deciding "obviousness".

The SCOTUS basicly assumes that an invention is obvious when it is an aggregation of preexisting inventions. The holder of such a patent needs to demonstrate that the combination was unforseen or that it creates synergies beyond what would be expected. The Federal Circuit says that this goes against the concept of presuming that issued patents are valid. Every invention is obvious once it is disclosed, so the only way to shift the burden of proof off of the patent holder is to require that the infringer demonstrate clear evidence that the combination was suggested in technical literature prior to the patent issuing. The SCOTUS assumes that a "person having ordinary skill in the art" is capable of solving problems through novel combinations of existing technology. The Federal Circuit assumes that a "person having ordinary skill in the art" isn't capable of creative problem solving.

Neither one of these standards does justice to the concept of "obvious". It would be nice to see the SCOTUS create a workable framework for deciding obviousness rather than simply reiterating its previous decisions.

like the definition of porno, maybe? (1)

DanTheLewis (742271) | more than 8 years ago | (#15610965)

Except obvious means you don't know it when you've seen it, you know it when you've foreseen it.

Great examples of the obvious patent (0)

Anonymous Coward | more than 8 years ago | (#15611044)

Look at just about any Color Kinetics patent. All are based on using PWM to control RGB color generation using LEDs. Something done for years before their core patents were filed!

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