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Test for "Obvious" Patents Questioned

ScuttleMonkey posted more than 7 years ago | from the state-the-obvious dept.

Patents 172

bulled writes "News.com is running a story about a case coming before the US Supreme Court on testing new patents for 'obviousness'. The decision has potential to significantly impact the High Tech industry." From the article: "Several Silicon Valley heavyweights, including Intel and Cisco Systems, have submitted supporting briefs that urge the Supreme Court to revise an earlier ruling. That ruling, they claim, has helped make it easier to obtain patents on seemingly 'obvious' combinations of pre-existing inventions."

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How about reforming patents all together... (2, Interesting)

pembo13 (770295) | more than 7 years ago | (#17013032)

so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line. So just let the little guys benefit, and the public as a whole may just benefit some more. (I do not really consider lawyers to be part of the public - sorry)

How about getting rid of patents all together... (1)

hritcu (871613) | more than 7 years ago | (#17013110)

At least for Software it would make a whole lot of sense.

Re:How about getting rid of patents all together.. (4, Insightful)

rucs_hack (784150) | more than 7 years ago | (#17013842)

With the current mess I would agree. However were the current tech market not so frankly corrupt, suing for a fast buck with frivolous patents there may be some merit to software patents.

I would think that such patents should be reserved for seriously massive innovations, not navigating a menu or button placement ffs. As an example had Gary Kildall patented some of his (at the time) massive innovations, he might have been able to get a truly fair due, instead of being ripped off and left in the wake of vast corporations taking his work and making billions.

We're all very familiar with his work now, but back then he was pretty much the only guy doing a lot of the work.

Software patents are here to stay, but they're screwed up royally.

Re:How about getting rid of patents all together.. (3, Informative)

squiggleslash (241428) | more than 7 years ago | (#17015614)

Let's pretend you're talking about inventive rather than innovative, because I suspect that's what you meant (most people do), and "He didn't actually invent it, but he was the person who first packaged it in a form that got it into people's hands" doesn't strike me as something anyone has said patents should be granted for. Patents are supposed to go to the first person to invent something and take it to the patent office, not the first person to make it popular.

I'm not really sure anything in CP/M qualifies as massively inventive. Kildall's CP/M became popular not because it was inventive, but because it was there. It was a simple program loader with a very small library accessable to loaded applications. Many of the fundamentals in CP/M went back to libraries that came with the Intel test rig he was programming.

Yes, many aspects of it were copied into QD-OS (better known today as MSDOS), but these were compatibility hacks rather than functionality. Things like "System call 5 writes a character to the console" (or something, I forget which call did that.) FAT was copied too, but FAT is, frankly, obvious. I'm not sure how many other operating systems prior to CP/M used the same concepts, my guess would be many, but the Unix system we know and love isn't that different - the major difference is that the filenames appear FAT's equivalent of iNodes, rather than in dedicated directory files.

Kildall would probably have disagreed with you anyway. The guy was a programmer through and through. Despite all the anecdotes, the major reason IBM didn't have CP/M86 for the PC was because Kildall wasn't that interested in it as a project. Had he been so, it would have been released a year or two prior, and Seattle Computing's QD-OS wouldn't have been written because the need for it would have been absent. If he'd been interested, when the IBM people knocked on his door, they'd have been treated as any other OEM, rather than a group needing an entirely new product.

Kildall was interested in the things he was working on, much more so than maximising the money he got and controlling the market. Short of doing so defensively, as you would today, I doubt he'd have patented anything, even if something as obvious and derivative as CP/M had been patentable.

Re:How about getting rid of patents all together.. (1)

UbuntuDupe (970646) | more than 7 years ago | (#17015744)

I strongly agree. It's *possible* for a software innovation to be *truly* novel and warrant a patent, but this is extremely rare. The problem is that the patent office gives them away far too easily, and lets them be far too broad. Like you say, a patent should be for some world-chagning invention, meaning a way to keep the PTO in line would be to enforce hard limits on the number of patents granted per period so they must be judicious in deciding what deserves a patent. Also, they could test a patent by taking the problem it intends to solve, and asking someone in the field, "what are some ways to solve x?". If he lists the idea to be patented, it's probably obviousl.

How about getting rid of IP altogether?. (2, Insightful)

PopeRatzo (965947) | more than 7 years ago | (#17014432)

We don't have to eliminate patents, just make it so that only individuals can hold them, and only for 5 years. No corporate ownership of patents and no passing patents on to heirs.

How rich is a person supposed to be able to get for having a good idea?

Same thing with copyright.

If you think that would hurt innovation, you are underestimating humanity to your own peril.

Re:How about reforming patents all together... (1)

drsmithy (35869) | more than 7 years ago | (#17013274)

so that the only ones who can benefit from patents heavily are the "little guys". Big companies have little incentive to use patents in any other way except that benefits their bottom line.

The point of patents is to benefit the bottom line of the patent holder - doesn't matter if they're big business or and individual.

Re:How about reforming patents all together... (5, Insightful)

SmokedS (973779) | more than 7 years ago | (#17013678)

The point of patents is to benefit the bottom line of the patent holder - doesn't matter if they're big business or and individual.


Actually, that's never been the stated purpose of patents. The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline. On the contrary, there is plenty of evidence of it actually inhibiting progress in a number of areas, the most blatant case being software patents. Patents have become a tool for the large companies that are on top to stay on top, and not to have to actually compete on the merits of their products. The basic tenet in the belief of the beneficial nature of patents is the belief that progress moves along in giant leaps of imagination, or immensely costly research, that is so rare that it needs protecting. For the most part this is just not true. Progress is slow and gradual and constantly builds on existing solutions. Patents are not beneficial in such a system.

The most popular poster child argument for patent proponents is pharmaceutical companies. "If there were no patents, no drugs would be developed due to the great cost, and where would we be then?" they ask. This doesn't hold up under scrutiny though. Analysis of the higher cost of patent encumbered drugs and the research budget of drug companies will show you in no uncertain terms that the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs. The state funding drug research itself would also bring with it the not inconsequential benefit of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

There are actually few rational arguments for any sort of patents, and very substantial arguments against them. Overwhelming arguments in the case of software patents. However, the companies that profit the most from the oligopoly maintaining power of patents are among the most powerful legal entities, and lobbying groups, in the world. Just about everyone except for patent attorneys and mega-corporations with huge patent portfolios oppose software patents. In spite of this they almost got legalized in the EU, and the proponents of them are trying again from a different angle now. Frustrating to say the least.
 

Medical research and patents (2, Interesting)

Per Abrahamsen (1397) | more than 7 years ago | (#17014620)

> The state funding drug research itself would also bring with it the not inconsequential benefit
> of the ability to concentrate on beneficial drugs, rather than drugs that will make a profit.

In most of the civilized world even the "private" medical research is tax funded, as a large part the medicine is financed over taxes. Cutting out the middle-men would be an obvious way to optimize the system for two reasons: 1) Public researchers have a much larger liberty to (and are strongly encouraged to) publish and share results at a much earlier stage than researchers in private corporations, where the final patent applications is usually the first publication of the research. 2) The current medical research is heavily unbalanced in favor of patentable items, starving out research in new uses for existing (non-patented or patent-expired) compounds for other diceases, as well as the effect of life-style changes and other non-medical treatments.

Re:How about reforming patents all together... (4, Insightful)

MightyYar (622222) | more than 7 years ago | (#17014636)

I have a few issues with this reasoning:

If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down.

Second, maybe I'm too cynical, but I see zero evidence that a government body could do as good a job with drug development as the free market. There are many, many failed drug companies - they took a risk on a new technology and failed. Politicians would be under fire for "wasting" money if they went down this path, and so government drug development would proceed down the safest path, where the employees and politicians would be as concerned about covering their asses as anything else. Not to mention that government departments tend to be chronically underfunded, full of corruption and nepotism, and very slow to react.

I think that there needs to be an additional test for a patent: would it become a trade secret if it weren't disclosed in a patent? This would allow a novel manufacturing process to be patented (even the software controls!), but would prevent things like Amazon one-click. Presumably, Amazon would have done the one-click thing with or without a patent system... so why should they get the protection? How does society benefit? Many of these software patents are asinine because they are right out there in plain view, and there is ample incentive for the companies to do them without the patent system. Apple's "look and feel" is a prime example. Does anyone argue that Apple now spends less time on look and feel since Microsoft won that case?

Re:How about reforming patents all together... (0)

Anonymous Coward | more than 7 years ago | (#17014834)

Not to mention that government departments tend to be chronically underfunded, full of corruption and nepotism, and very slow to react.

And companies aren't?

Seriously, if all the screwed up shit out there actually managed to kill off all of the companies that were full of it, we wouldn't have Dilbert.

Re:How about reforming patents all together... (2, Interesting)

MightyYar (622222) | more than 7 years ago | (#17015038)

No system is perfect, but it is much harder for a government to fail than a company. As bad as Dilbert's world is, it pales by comparison to the workings of a government agency.

At any rate, even if Merck turns (turned?) into a big bloated mess, they still have the capital and opportunity to snatch up a small startup with promising technology. Many, many of these small startups fail - but many are also snatched up by the bigger guys. Thus, even when the big guys get bloated and unresponsive, bleeding edge research can still occur because venture capital will fill in the niche. Actually, this is a pretty nice arrangement, because the big, bloated company is probably very good at all of the bureaucratic stuff involved with testing and getting a drug approved with the big, bloated government. If government were the only game in town, there would be no venture capital to fill in the niche - and I'm not at all confident that the government would fill it themselves.

I'm not one of these crazy capitalist guys, but I do happen to think that it works pretty well if you are willing to put up with the inevitable cycles in the market. Government is good for slow, plodding, and steady. For this reason, I happen to be fairly pro-free-market, except when it comes to critical infrastructure like food, water, sewer and electricity. Some free market is okay in these cases, but frankly I'm willing to pay a premium for my food if it ensures a steady, affordable supply :)

Re:How about reforming patents all together... (2, Insightful)

russ1337 (938915) | more than 7 years ago | (#17014958)

>>"If no patents existed, everything would become a "trade secret". Essentially, every factory would become a Willy Wonka factory, where no one knows how a product is created - it just pops out. Key technologies could be lost if a person dies or a factory burns down."

Once that first product 'pops out', reverse engineering kicks in. Take the 3M approach - they know their product will be copied so aim to be first and fasted to market to make their cash quickly by being innovative ahead of their competition. This gives the OEM a window in which to maximize their sales/profits, and promotes competition and technical innovation.

Re:How about reforming patents all together... (1)

MightyYar (622222) | more than 7 years ago | (#17015262)

That's fine for certain products, but let's use Damascus steel as an example. We THINK we know how they made it now, but the secret was lost for over 300 years. This illustrates how reverse-engineering is not always sufficient to recover a "trade secret". If someone in India had patented Damascus steel back in 300 BC, the patent might have expire by now :)

Re:How about reforming patents all together... (1)

jackbird (721605) | more than 7 years ago | (#17015612)

...but the mine with the properly contaminated ore would still be exhausted, and we still wouldn't be able to make any.

Re:How about reforming patents all together... (1)

quickgold192 (1014925) | more than 7 years ago | (#17014678)

"If there were no patents, no drugs would be developed due to the great cost, and where would we be then?" they ask. This doesn't hold up under scrutiny though. But then you go on to say how if there were no patents the state could pick up the slack, thus invalidating your point. Patents *do* give pharmaceutical companies the incentive to spend massive amounts on R&D. Without them we would have to fall back on your socialist alternative.

Re:How about reforming patents all together... (4, Insightful)

LaughingCoder (914424) | more than 7 years ago | (#17015040)

... the state could spend several times the amount of money that the pharmaceutical companies spend on research, and our society would still save money because the price gouging is so brutal on patent encumbered drugs.
Are you serious? Remove the profit motive? State funding? Have you seen the condition of public schools in the US (hint, quality is awful and costs are sky-high)? Have you seen the condition of the roads and bridges? How would you compare the efficiency, cost-effectiveness and customer service of the US Post Office with Fed X and UPS? Let's talk about airport security. Or border security. Paragons of efficiency? While we're on the subject, how well run is the US Patent Office? You really think the government would do a better job of drug R&D? That flies against *all* empirical evidence of the last 500 years. No, if the state developed drugs we'd have $20 aspirin tablets and not much else.

Re:How about reforming patents all together... (2, Insightful)

drsmithy (35869) | more than 7 years ago | (#17015064)

Actually, that's never been the stated purpose of patents.

Nor does it need to be for it to reflect how they work.

The government is not supposed to be in the business of enriching individual people or corporations, and they are well aware of it. The rationale for patents, as for any regulation, is to attempt to optimize the entire system. In the case of patents, by encouraging innovation. That's the party line, and pretty much every party around the world toes it.

The point of a patent is to impose artificial scarcity and hence increase an invention's value. Note that the "invention" is distinct from the ensuing "products".

As soon as you take money out of the equation, however, patents are pointless. Ie: it's all about the bottom line.

There are actually few rational arguments for any sort of patents, and very substantial arguments against them.

The rational argument for patents is the same as the one for copyright - that there is no (known) better way to create value where it would not otherwise exist (ie: in the face of infinite supply). Patents in the real world are much less of a problem, however, because they are opt-in. There _is_ the significant flaw in contemporary times that patenting things is *way* too easy, and that some things which should not be patentable, are (your example: software), but that largely a flaw in the execution, rather than the concept.

Little or no evidence indeed (1)

inviolet (797804) | more than 7 years ago | (#17015394)

There's a bit of a problem with it though. There is actually little to no real evidence of patents being beneficial to the economical system. For any technological discipline.

Yes, little or no real evidence. Other than the whole economy as it stands today, with the recent decades of geometic growth -- unique in history -- in most sectors, including particularly the technological disciplines. If you insist that patents were irrelevant to that, you'll need some awfully compelling data.

Of course patents get abused, but patents are (at heart) an incentive system. Any argument against them must solve the daunting task of providing or proving an alternative incentive that works comparably well.

As well, consider that there are nearly eight million patents out there. What percent of them are acting as anti-competitive threats which a reasonable economist would object to? Whereas what percent of them are protecting past, current, and future research investments that bore fruit? If you insist that patents are more trouble than they're worth, you need to provide these numbers.

Re:How about reforming patents all together... (2, Interesting)

fyngyrz (762201) | more than 7 years ago | (#17013414)

I do not really consider lawyers to be part of the public - sorry

Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades. Speaking of the US, as a US citizen. Not familiar with other systems. Entirely too familiar with ours.

Re:How about reforming patents all together... (2, Insightful)

Bastard of Subhumani (827601) | more than 7 years ago | (#17014210)

Lawyers aren't the problem. Laws are the problem. Laws come out of legislatures, and legislatures are out of control, have been for decades.
The legislatures aren't out of control. The question is, whose control are they under?

Re:How about reforming patents all together... (1)

fyngyrz (762201) | more than 7 years ago | (#17014304)

You're quite right. My statement was based upon the idea that if they're not under the citizen's control, they're out of the constitutional realm of legitimate operations. But of course, they're under the complete and direct control of PACs and corporations. This is a miserable state of affairs for the citizens.

Re:How about reforming patents all together... (1)

Ours (596171) | more than 7 years ago | (#17015234)

Some other systems have a very nifty obligation to make common sense prevail.
Where I live it's the case. It may sound obvious but it's missing from US/UK legislative system.

Re:How about reforming patents all together... (1)

TheVelvetFlamebait (986083) | more than 7 years ago | (#17014018)

Patents don't tend to benefit the "little guys" because the "little guys" don't have the time or money to invent and to then market the invention. No matter how you change the system, switch it around, any system that rewards invention will definitely reward the "big guy" over the "little guy".

Or... (0)

Anonymous Coward | more than 7 years ago | (#17014190)

Here's my favorite solution:

The process continues on it's current course of those with money, influence, and important interests controlling it. Meanwhile, all of the irrelevant nerds that compose slashdot scream and whine about the end of the world in a display similar to that of watching someone sitting on a couch try to stop a moving car by grabbing on to the door handles. Completely oblivious to the nerds, the leaders of industry and the politicians will continue to do their dance while their lower class equivilents do their thing ignoring regulation and offshoring infringing production to country's that rightfully couldn't give 2 shits about american patents. *cough*china*cough*

In short, all your base are belong to them. If it bugs you so much, beat them at their own game and change things. Otherwise, cope with your irrelevance quietly. I'm sick of the chicken hawking. Half assed heel digging just prolongs the bullshit. Become effective and turn things around or let things hit critical mass ASAP so I don't have to sit through the bullshit longer than necessary.

Wrong question (1)

srussia (884021) | more than 7 years ago | (#17014854)

"If they can get you asking the wrong questions, they don't have to worry about answers." -Thomas Pynchon

Once again, they've got us arguing about the implementation of a stupid idea (patents, i.e., state-enforced monopoly), rather than the stupid idea itself.

ITSATRAP

The issue is obviousness *before the fact* (4, Interesting)

BadAnalogyGuy (945258) | more than 7 years ago | (#17013048)

Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.

Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

Ask anyone who has submitted a patent application whether they felt their patent was frivolous. I imagine you'd find the vast majority of them holding the belief that they did something novel.

Re:The issue is obviousness *before the fact* (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17013118)

Bullshit.

Hundreds of people submit patents that they know are not novel. Tell me the guy that patented the "Knork" [wikipedia.org] thought he was the first person to put a fork and knife together. Their genius is realizing that such stupid things can be patented.

Re:The issue is obviousness *before the fact* (2, Insightful)

bytta (904762) | more than 7 years ago | (#17013888)

There are many kinds of patents.
1. A simple (or complicated) way that works in solving some problem or is useful in some way, e.g. Metal wrapping for batteries.
2. An obvious amalgam of earlier inventions, that does not really solve any problems, e.g. knork (which is just a modified http://en.wikipedia.org/wiki/Pastry_fork [wikipedia.org] anyway )
3. A relatively simple idea (often a rip-off of earlier ideas) wrapped in obscurity just to make it open enough to make everyone cough up some money for using it. E.g. "Click to buy"
4. etc...

To me - only category 1 is "inventions", and to me, only "inventions" are patentable.
Most software patents mentioned on /. go into category 3 - some are in cat 1.

Re:The issue is obviousness *before the fact* (2, Funny)

Duncan3 (10537) | more than 7 years ago | (#17014446)

Actually, everything on /. is usually in

#4. In widespread use for 10-20 years before the patent was filed.

Re:The issue is obviousness *before the fact* (1)

MooUK (905450) | more than 7 years ago | (#17014264)

I've used a fork as a knife occasionally for years. I've seen sporks with a flat/sharper edge for cutting. So, yes, definitely not new.

Re:The issue is obviousness *before the fact* (0)

Anonymous Coward | more than 7 years ago | (#17013254)

>> Programmers look and say, man, that's so obvious!
I don't. I go, "Wow! That's pretty smart/elegant way to do so and so. I will keep that in mind if I happen to come across similar problem in the future."

I am no opposer of software patents but all the software that is created is not patentable. eg. LZW compression falls into my classification of patentable software. so does mp3 format. iTunes sales/distribution model does not. online shopping and shopping carts have existed long before. currently i am working on a php script that reads my iTunes xml file and presents file metadata to the browser. later i plan to add ability to update the info through password protected page. probably no one has thought of it before this. but the idea or implementation does not involve enough innovation to be patentable. just because i am the first one to implement a way to doing something does not mean that the implementation is patentable.

Re:The issue is obviousness *before the fact* (2, Insightful)

MemoryDragon (544441) | more than 7 years ago | (#17013362)

The once you have seen it and then it is obvious argument has been brought to the table ad nauseum, and no I do not buy it. First of all most patents filed have prior art to a big degree, secondly, what has happened in the recent past is that everything under the earth has been patented, third, once you face a problem and bring it in front of 100 guys to solve it 20 of those probably at the same time will find the most obvious way. So obvious really is obvious in most cases!

Re:The issue is obviousness *before the fact* (0)

Anonymous Coward | more than 7 years ago | (#17013398)

total utter bullshit.
Granting patents because the prior art is buried somewhere the patent office does not have access to is the problem. There is a patent by microsoft on allocating recently run threads on incoming I/O. is it something no body ever did? It is just that somebody did it but the prior art can't be brought out until microsoft sues somebody with the prior art.

Re:The issue is obviousness *before the fact* (2, Insightful)

mpe (36238) | more than 7 years ago | (#17013438)

Same with a lot of software patents. Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.

Or maybe the first 10-100 people to think of it either thought it was so obvious that it wasn't worth trying to patent it or they wern't in the "patent everything" frame of mind. The problem with the issue of "obvious" is that it tends to be poorly documented...

Re:The issue is obviousness *before the fact* (2, Insightful)

DMiax (915735) | more than 7 years ago | (#17013522)

There's also the inverse procedure: everyone thinks something is obvious then comes One that says "it is not!" then patents it, despite the fact that he did not invent it and it is common practice or technology.

Am I the only one who remembers an attemp to patent the wheel [slashdot.org] ?

Or Microsoft patenting desktop pager [slashdot.org] and XML [slashdot.org] ?

Most patents do not even come from the guy that invented the technology, funded research, or at least used it!

Re:The issue is obviousness *before the fact* (2, Insightful)

shutdown -p now (807394) | more than 7 years ago | (#17013598)

Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point? Why did the idea not exist, or at the very least have a patent pending? Because until someone sat down and thought of how to best implement something, it simply hadn't been thought of seriously until then.
No, more often it's because something is so obvious, any sane person (who does not happen to be a lawyer) wouldn't even think it is patentable.

Re:The issue is obviousness *before the fact* (1)

Purity Of Essence (1007601) | more than 7 years ago | (#17013722)

Bingo! Give that man a cigar!

Re:The issue is obviousness *before the fact* (4, Insightful)

ObsessiveMathsFreak (773371) | more than 7 years ago | (#17013712)

But is it? Look at the battery problem mentioned in the article. Now we look and say duh, of course it makes sense to wrap batteries in a metal cylinder. But until that point no one had thought of doing it. The solution stared at them in the face, but no one ever sat down to think it through.
So one guy has a brain fart and now he can sit on his ass and impede human civilisation because of it? What ever happened to trade secrets? Copyright?

Patents are not about encouraging "innovative" ideas. They are not about rewarding research. They are about granting monopolies to people who grease enough palms. That was their original purpose, and that, beneath all the layers of bullshit, is still their purpose now. To grant monopoly; unrestricted, pure and total.

If you believe otherwise, then the marketo-psychic dominator troop have earned their pay today.

Re:The issue is obviousness *before the fact* (2, Interesting)

eklitzke (873155) | more than 7 years ago | (#17013732)

I agree with you completely.

The amount of things that we take for granted is just enormous. Let me explain. Right now you are undoubtedly using a multitasking operating system, meaning that you can run more than one process at once. It is really non-obvious that such a thing is even possible, let alone can be done efficiently. For those of you who don't know how it is done (and I bet even on Slashdot, most people do not), how would you overcome this problem? How are you going to make sure that once the kernel gives a time slice to an application, the application will give it back? How are you going to make sure the application doesn't corrupt the location in memory the kernel resides on?

Here is another, more basic example: writing. Homo sapiens existed for tens of thousands of years all over the globe, and only a handful independently discovered written language. To us it seems perfectly obvious that you can express spoken words in some sort of symbolic form and preserve it as writing, but this is not an obvious concept.

Let me take the writing example one step further: what is the most obvious way to write a language? With pictographs/ideographs. Each word is its own character. The idea that you can express this written language purely with phonetic components is really a novel concept, even to me, a native English speaker.

I am a math major, so my final example will be from that realm. Think about high school algebra. What does f(x) = x^2 look like? A parabola, right? That idea is a very recent development in mathematics (within the past few hundred years). The idea that you can do the opposite -- express geometric relations in algebraic terms -- was equally as innovative. To us it is obvious that you can interpret algebraic functions as curves or lines, that you can write a formula to express the area of something, and that you can draw mathematical structures. But these things are *not* obvious!

The idea that I am driving at here is that there are many, many things that we consider obvious that clearly aren't. While I feel that many patents clearly are obvious, and that there is a considerable amount of patent abuse in the system at the present with respect to obvious patents (my current employer comes to mind...), it is really, really hard to say what is obvious and what is not when you have hindsight. If you were a programmer and only coded in C your whole career, do you really think that you would be able to come up with the idea of an object oriented language? Or the idea of automatic garbage collection? When someone comes up with a truly novel idea they deserve to be able to patent it. And while there is a lot of abuse in the patent system, I suspect that in many, many cases things that are now considered obvious were considered revolutionary at the time of their invention.

Re:The issue is obviousness *before the fact* (1)

Bloke down the pub (861787) | more than 7 years ago | (#17014792)

What does f(x) = x^2 look like? A parabola, right? That idea is a very recent development in mathematics (within the past few hundred years).
If Pythagoras' Theorem isn't a link between algebra and geometry, I don't know what it is. And it was around before he lived, which was two thousand years ago. Last few hundred years my arse.

Re:The issue is obviousness *before the fact* (4, Insightful)

LordLucless (582312) | more than 7 years ago | (#17014056)

The thing is, ideas aren't patentable. Methods are. The test for obviousness should be, given the specs, can another programmer come up with the same implementation. For example, if someone said "invent a system that allows one-click purchasing", and the programmer can come up with the method described in the patent, the patent should be invalid as obvious. On the otherhand, if you say "an algorithm for compressing audio data", and the programmer can't derive MP3 compression, then that should be a valid patent. Note that patents don't cover the idea, just the method. A patent on "a method for compressing audio data" doesn't stop any other compression scheme - just the particular one outlined in the patent. Of course, bundled with this needs to be a way of preventing submarine patens a la UNISYS' LZW/GIF.

Re:The issue is obviousness *before the fact* (2, Interesting)

mark-t (151149) | more than 7 years ago | (#17014282)

The problem with patenting methods that are implemented by software, however, is that all algorithms are simply logical steps... the fact that these steps are simulated at an abstract level within the cpu cycles of a computer is irrellevant, logic is an intrinsically mental construct, and they are ultimately just mental steps that ultimately involve no more than the appropriate sequence of logical AND, OR, and NOT operations on binary digits. Mental steps are not supposed to be patentable, so algorithms, regardless of how innovative they may be, should not be patentable. Software is copyrightable anyways, so the idea of patent protection should even at best be superfluous.

Re:The issue is obviousness *before the fact* (2, Insightful)

LordLucless (582312) | more than 7 years ago | (#17014424)

You could say the same about any physical invention; after all, an internal combustion engine is just a series of interactions between fundamental physical forces, just as an algorithm is just a series of logical operations. A physical device involves transforming and moving energy between its components, an algorithm applied to a computer involves shunting electricity around various gates.

Copyright and patents don't offer the same type of protection, so saying algorithms are adequately protected by copyright isn't really accurate. For example, if someone copyrighted their MP3-encoding code, and I got my hands on it, I could implement the same algorithm in a totally different language, and it wouldn't be violating their copyright. Copyright protects a particular instance of a program, a patent protects the general principle. At the moment, there are implementational problems with both systems (insufficient obvious-testing for patents, infinite extensions for copyrights), but I don't see any fundamental reason why an algorithm should be treated differently from a physical invention, as long as it is sufficiently innovative, sufficiently non-obvious, and a working example is provided.

Re:The issue is obviousness *before the fact* (1, Insightful)

Anonymous Coward | more than 7 years ago | (#17014884)

Well, if you just translated it, it would be a derived work, and fall under copyright.
If you implemented it from scratch from a mathematical description of the procedure, it should be fair game, irregardless of language.
The mathematical algorithm can't be patented. That should imply that you can freely encode mp3 with a blackboard and a lot of spare time. Thus you should also be able to do the calculation with a straight-forward implementation on a computer.

UNISYS LZW/GIF NOT A SUB. PATENT (0)

Anonymous Coward | more than 7 years ago | (#17015068)

Do some research into the term 'submarine patent': while it was questionably shadey in its select application, this particular patent was in FULL PUBLIC VIEW years - nearly a decade! - before gif's were mainstream web media.

Slashdot might be filled with smart tech types, but you people are abysmal on the whole when it comes to outside knowledge, little better than halfass local TV anchors ad libbing words remembered from stories they didn't write.

Re:UNISYS LZW/GIF NOT A SUB. PATENT (1)

LordLucless (582312) | more than 7 years ago | (#17015180)

Yes, and they didn't enforce it until it became a de facto standard. That's the sort of behaviour that needs to be controlled.

Re:The issue is obviousness *before the fact* (1)

idlake (850372) | more than 7 years ago | (#17014870)

Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!

Actually, the usual case for software patents in my experience is that people say "hey, I have been using that for years, how in the world can anybody get a patent on that".

Furthermore, granting someone a patent costs society a lot; we should err on the side of granting too few patents, not too many, and the burden of proof that something is "unobvious" should be on the person filing the patent.

Ask anyone who has submitted a patent application whether they felt their patent was frivolous. I imagine you'd find the vast majority of them holding the belief that they did something novel.

I actually have a bunch of patents. I applied for them because my employer required it, and my employer required it for trading with other companies. I think the patent system should be changed so that what I hold patents on shouldn't be patentable. At the same time, I think my patents are better than the great majority of patents that are currently being granted.

I've invented a bunch of things since then, which I think are considerably more useful. I still haven't patented, simply because there has been no point: as an individual inventor, patents wouldn't have helped me at all, and the cost of getting them is high.

The patent system is broken; it doesn't help people who invent things, it only helps lawyers and big companies that want to keep new competitors out of the market.

Every program can be patented (0)

Anonymous Coward | more than 7 years ago | (#17014886)

I wrote about 70 lines of code to accomplish something simple and routine that every program of its type should do. My employer wanted to patent it. I told the patent attorney I hadn't invented anything, that I and every other competent programmer had done this many times before.

The attorney said you can patent anything that is new and not obvious. Further, if someone hasn't patented it already, it's new. And if it was obvious, someone else would have patented it already.

I replied that his interpretation means every program that hasn't been patented yet could be patented. He agreed.

I told him "this is the lawyer's full-employment act." I would need two lawyers sitting behind my chair watching everything I type, to (a) make sure it wasn't patented already, and (b) patent it. He agreed again, and said it was a great time to be working in intellectual property.

Of course, once my own thoughts are patented, *I* can't use them again on my next job!

I quit my job and haven't written code for a corporation since. That was five years ago. The patent has been granted in the US and many foreign countries, and my name and home address have been shared with the governments of countries where in the past intellectuals have been "purged" for being too smart to swallow the party line.

Posting AC, but it's too late for me, my employer already shared my private data without my permission, thanks to 70 lines of completely ordinary code I wrote one unlucky day.

Re:The issue is obviousness *before the fact* (1)

mavenguy (126559) | more than 7 years ago | (#17015214)

This story is a dupe [slashdot.org] but I'll comment further. I'll also make my standard disclaimer when discussing patents: I am not a patent attorney, but I am a former patent examiner.

The point you make is known in the patent biz as "hindsight", and is commonly argued by patent applicants against rejections based on obviousness ( 35 USC 103 [cornell.edu] ). This, of course, is the crux of this issue;given a patent claim and a set of pieces of "prior art", no one of which describes the invention in the claim (which would render the claim unpatentable for lack of novelty (i. e., "anticipation") under 35 USC 102 [cornell.edu] ) how does one apply the law to render a conclusion. Of course, there's one additional factor, beyond mere descriptive disclosure of the "process, machine, manufacture, or composition of matter" (35 USC 101 [cornell.edu] ) claimed, and that is the mythical "person having ordinary skill in the art to which said subject matter pertains". In infringement cases, where there's real money involved ( the patentee/licensee and/or the accused infringer markets), expert witnesses can give testimony for either side in addition to the prior art entered as evidence.

In the PTO during application prosecution, on the other hand, there is no access to expert opinions for the examiner. On average an examiner has on the order of 15-20 hours to work on a typical application (varies by examiner's level and the art he/she is assigned). This includes all handling of the application from initially reading it, searching for prior art, formulating actions, reading and responding to amendments and arguments presented by applicant, reading applicant's appeal brief and writing an examiner's answer in those cases where applicant appeals the examiner's rejection to the PTO's appeal board, etc. In this environment, the level of ordinary skill in the art must derive from the prior art references, themselves, and any conclusion of obviousness must derive from what the prior art references show.

The determination, thus, rests with determining whether the things shown in one reference would be applicable to be used in another. In th past, patent examiners were often given great weight in making such judgments, although they had to be supported by some kind of reasoning. However, over the last few years under the judicial oversight of the PTO's appeal court, the previous Court of Customs and Patent Appeals (CCPA), now the Court of Appeals for the Federal Circuit (CAFC) the ability of examiners to make such determinations has been limited, with the Court demanding that more and more of the rationale be expressly stated in the prior art themselves. If you assumed that, in each case, that the absolute best prior art has been developed this would tend to decrease the number of rejections that could be sustained, since even expert testimony would be questioned for not supporting their conclusions, or being biased, that is, the expert is using hindsight to reconstruct the invention and this is the main reason the case is before the SCOTUS. In the PTO there is the additional burden of increased searching to find "better" prior art; references that would be perfectly fine in supporting rejections made under the environment of years ago will no longer provide such support; the haystack gets larger (more and more prior art heaps on as time progresses) and the available suitable needles get fewer and fewer.

The legal requirements derived and applied by the CAFC have not previously been tested by the SCOTUS; the leading case, which the CAFC has used as part of its legal reasoning, is GRAHAM v. JOHN DEERE CO. [findlaw.com] which, while setting out a series of steps to be used to make the obviousness determination, sets forth no detailed specifications on just what each prior art reference must say beyond the bare description of machine, method, etc. The CAFC has added the requirement that the various cited prior art references must "suggest" why it should be (or, more properly, would have been) applied to that shown in other prior art references.

I would hazard a guess that, for one thing, that the SCOTUS will not overrule Graham in any way, but is likely to to specify additional tests or analytical requirements dealing with how prior art references may be "glued" together. The potential impact could be huge, since lots of existing patent license and infringement situations could be thrown into question if the standard to meet section 103 is make higher. The effect this would have during PTO prosecution would only develop over time, especially if PTO management would decide that, given that it would be easier for examiners to make rejections, that more work should be expected, i. e. less hours per application be permitted so as to reduce patent pendency as the primary way to "spend" such as judicial "bonus."

Re:The issue is obviousness *before the fact* (1)

hey! (33014) | more than 7 years ago | (#17015356)


Most patents, especially for software, are obvious after the fact. Programmers look and say, man, that's so obvious!


I agree that is not a good test of obviousness.


Yes, when you look at them, they seem totally brainlessly obvious. But then why hadn't anyone thought of it until that point?


Usually because the conditions under which the solution is practical or necessary haven't occured up to that time. In the late 90s and earth 00s, there were a ton of software and business method patents of the form "use of wireless network for X", where "X" was something people had been doing all along. "X" had not been done wirelessly before becaue the digital wireless networks needed didn't have the requisite coverage or affordability.

In fact, this technology squatting has lead the the phenomenon of the "intellectual property company". The business model is simple. Look at a technology that is rapidly maturing, and file a patent application for an obvious application of that technology just before it becomes practical. You get the patent, then await the wave of commercial applications of the "idea" that are certain to follow. Well after your victims have invested money and created a profitable products, you shake them down for a license fee.

This is a form of intellectual property parasitism that depends on exactly the argument you are making: lack of prior art as evidence of non-obviousness. If that argument is true, then there is no need for a separate obviousness and prior art condition on granting patents. I would argue that in fact, lack of prior art has been improperly used as the sole test of non-obviousness. This confuses necessity with sufficiency, in effect the fallacy of confirming the consequent. If an invention is original, then there is no prior art; therefore [!!!] if there is no prior art, an invention is original. I see what I eat is the same as [!!!] I eat what I see.

A better test of obviousness is whether, in a group of programmers faced with the same task but who have not seen the patent in question, the same solution comes up. This test could easily be used empirically. Hire a board of competent programmers who meet regularly to evaluate "problem statements". Their job is to create a number of possible approaches to solving the problem. If the prposed patent idea comes up, then it is "obvious".

This test is only more practical and objective than somebody guessing whether they'd have thought of it themselves. It is not only better from a utilitarian justification of patents, it is even better under a property rights justification.

If I have an aha moment, what moral claim do I have to own that idea? Only the claim that the idea is somehow a product of my unique character, unique experience, or both. To be sure, this is a weak claim, but let's allow it. If somebody else faced with the same problem has the same "aha", then it cannot be said to be a product of my uniqueness.

Re:The issue is obviousness *before the fact* (1)

ProppaT (557551) | more than 7 years ago | (#17015420)

The point you're missing is that some concepts are so simple that people do them and never think to copyright the idea/concept because it doesn't warrent a patent. Then someone, lets call him "Mr. Obvious," comes up and says "well hell, no one's patented this...lets see if it'll go through." Even though it's something obvious that people have been doing for ages, it goes through the patent office and this guy now has receives royalties on the idea for anyone who can't prove that they were doing this all along.

It's true, a lot of things are obvious in hindsight, but a lot of things are also obvious from the getgo. One of the major problems is that patent offices don't always have knowledge required to make a ruling over whether a patent is legitamate or not.

Well, maybe.... (1)

djupedal (584558) | more than 7 years ago | (#17013074)

Like most actions that measure, while things look tidy on paper, applying them is where the trouble shows up.

As the example going begging here....just who gets to decide what constitutes 'obviousness'...?

Because at the end of the day, we're going to be left with only those things that are SO obvious they don't need to be pointed out, and there goes the process.

"One man's window is another man's door...one man's ceiling is another man's floor - one man's princess is another man's whore."

Re:Well, maybe.... (0)

Anonymous Coward | more than 7 years ago | (#17013212)

the problem is that rights on information are doomed to sink in various problems
interpretation of information depends not only on its sender but on its reciever also
if u dont understand chinese the text in chinese would be not obvious to you but simultaniously it would be plain clear to someone from China.

same data can have multiple interpretation
one single interpretation can be encoded in multiple ways

i've heard ppl translating gene information into music and listening to it. Is that paticular big number a 'gene code' or a 'music file' ? It depends on interpreting program. Ultimitly our brain is interpreting program as well and each of us has its own

Re:Well, maybe.... (0)

Anonymous Coward | more than 7 years ago | (#17013246)

Asking for the status quo to be kept for those gaming the system is not an argument. Gaming is the right word, or perhaps gamboling suggests a rollback should occur.

The court should toss out parasitic variations, moreso if one or more main ingredients are already patented.

Patent a 'Vegiburger' or Mysteryburger because hamburger was already taken, reduces to the same- something edible between bread.
Pedal = foot operated lever, analog, digital or wire, its a pedal.
Thinking about this, adding explosives, spikes or cuffs to get car thieves is obvious, as is a vibrating massager.

If ten subject matter experts were emailed or polled on 'is this obvious'; that is enough. If a patent references 20 prior inventions, that each references anoher 20 - is 1/401th originality deserving of anything?

Time some truths were told, and ego's deflated.

This is the only hope to strengthen patents (1)

houstonbofh (602064) | more than 7 years ago | (#17013088)

We so desperately need this! When you can get a patent on anything, it makes patents in general worth less. This is why companies now collect them as armor. Hopefully the court will make them much harder to get. The effect will make the patents that are granted much more valuable. No truly innovative company can be against this. IP lawsuit companies on the other hand...

Re:This is the only hope to strengthen patents (1)

jbourj (954426) | more than 7 years ago | (#17013198)

Well, you're point is so obvious it hardly deserves consideration at the patent office.

Re:This is the only hope to strengthen patents (1)

donaldm (919619) | more than 7 years ago | (#17013594)

I agree that patent reform is way overdue but unfortunately there are too many corporations who will oppose it. A simple example of how a lawyer will present his client's case to a Judge is to question what is "Obviousness" and I can see this dragging on for years until these people get sick and tired of the money they will be given to oppose fairer patents.

A good start would be to abolish any patents based on maths and logic (ie. software) but again there are far to many companies that would feel threatened by this.

I think the the following end quote from the article says it all. Read "valuable" as "mutually assured destruction".

"I don't think U.S. industry is going to stand for a huge cloud being placed on their valuable patent portfolio," said Mossinghoff, the former patent commissioner.

Why even allow any patents? (2, Interesting)

Karganeth (1017580) | more than 7 years ago | (#17013128)

Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product. The market suffers and the consumer suffers. There is less competition, which means the company owning the patent doesn't have to make it's product so much better. The only possible upside is that it would give inventors an incentive to invent things. Though why not just give them say 10% of what the product makes for the next 5 years or some other similar system?

Re:Why even allow any patents? (1)

moreon (120076) | more than 7 years ago | (#17013260)

Well, consider the drug industry. It takes, on average, 800 million to produce a new prescription drug. Plenty of research money ends up going down the drain without a marketable product to show for it. You need to give producers huge incentives (read: profit), to take on huge risks.

Re:Why even allow any patents? (1)

fyngyrz (762201) | more than 7 years ago | (#17013506)

It takes, on average, 800 million to produce a new prescription drug.

This is not an inherent problem in such development. This is a problem that is a consequence of laws that require the drug companies to go through a series of very expensive, and often superfluous, steps. If they were allowed more leeway in producing drugs, and consumers were allowed more leeway in the choices they made about consuming drugs, a great deal of these costs would disappear. It is also a consequence of drug companies being vulnerable to litigation; part of a drug's development cost is the potential liability. Again, this is actually a legal problem, not an actual cost problem.

You can compare this to the FCC's "type acceptance" requirements for starting a radio station. To do it the way the FCC requires, it costs about 100,000.00 to start a relatively low power FM station. Not counting the license. However, using carefully selected equipment and engineering skill, a radio station of higher quality, higher power, greater reliability and far less cost — just a few thousand dollars, certainly less than 1/10th the cost — can be put into service. The catch? It is illegal, of course. And of course, if you were willing to give up a few things — a bit of power, a bit of signal to noise at the audio input end, perhaps a little less sophisticated radiation pattern — the whole thing can be done for about $100.00 without interfering with anyone else in any way. Except for the government's interfering with the whole thing, of course.

Anyway, back to drugs: Every time someone dies from X, where drugs for X are unavailable due to being deep into some FDA testing protocol, the point is made again. And ignored again. Also, the extended time frames for drug development are in many ways legal problems — submit form A to department B and wait for time T to proceed to the next step.

Re:Why even allow any patents? (1)

pakar (813627) | more than 7 years ago | (#17013648)

Well, change the patent-rules a little bit then.

- Patents are valid for 3 years or until they have made a profit of more than 3 times the research-cost.
- After 3 years it's the patent-holders responsebility to prove that they have not made more profit than 3 times the investment-cost.
- At the patent-application they need to specify the research-cost, and if they are caught specifying higher numbers they would have to fine the specified amount.
- If someone claims prior-art of a patent to the patent-office it's up to the patent-holder to prove that they where first. Not the other way around as it sounds to be today.

This way we would offer the 'best' of 2 worlds. Patents for simple ideas expire quite fast but the more costly can be in effect for quite some time, and maybe even longer than they are today.

I think a variation of this idea would give the companies the incentive to continue developing new things while still keeping the most rediciolus patents out of the patent-system, or atleast flush them out as fast as possible.

Re:Why even allow any patents? (1)

OneSmartFellow (716217) | more than 7 years ago | (#17014008)

It takes, on average, 800 million to produce a new prescription drug

Only because the CEO of Eli Lily expects to take home almost $10 Mil a year http://www.investor.reuters.wallst.com/stocks/Offi cerProfile.asp?rpc=66&symbol=LLY&ID=28536 [wallst.com]
The CEO of Wyeth expects to take home more than $5 Mil a year http://www.investor.reuters.wallst.com/stocks/Offi cerProfile.asp?rpc=66&symbol=WYE&ID=57228 [wallst.com]
The CEO of Merck expects to take home almost $3 Mil a year http://www.investor.reuters.wallst.com/stocks/Offi cerProfile.asp?rpc=66&symbol=MRK&ID=136257 [wallst.com]
The CEO of Pfizerexpects to take home over $3 Mil a year http://www.investor.reuters.wallst.com/stocks/Offi cerProfile.asp?rpc=66&symbol=PFE&ID=200397 [wallst.com]

When the top executives account for such a sizable percentage (1 man takes home more than 1% of that $800 million) of the development costs, is it any wonder the costs are so high.

Re:Why even allow any patents? (2, Insightful)

langelgjm (860756) | more than 7 years ago | (#17013284)

Patents have no point to them. I'm surprised that they're still around, because all they do is help companies create a monopoly over a product.

That is exactly the point - a government enforced monopoly for a limited period of time. Without patents, any company could just come along and rip off your design, into which you poured time and money with R&D, and begin selling it, most likely undercutting you on the cost, since you are trying to make up your expenses.

The problem is not the idea of patents - in theory, at least to me, they seem like a decent and necessary idea. The problem is that not all industries are the same, and current patent law is outdated for the software industry. What we need is for legislators to wake up and realize that a one-law-fits-all approach does not work.

Re:Why even allow any patents? (0)

Anonymous Coward | more than 7 years ago | (#17013308)

patents had a point when they were first conceptualized. patents served two purposes: (1) grant the inventor a fixed amount of period of monopoly to recover the cost of investment in research (2) forced competitors to figure out new ways thereby encouraged innovation. this was until they started being abused. big companies now patent things to suck out every last possible penny from the market instead of stopping when enough has been gained to recoup research investment + to fund future research + operating costs. that's what is stifling innovation now. a lot of smart people just don't have enough money to get a license to use the patented thing. they have enough to get a couple of licenses but usually a significant work will require twenty licenses which is not affordable for most guys doing independent tinkering.

Not quite accurate. (1)

WindBourne (631190) | more than 7 years ago | (#17014412)

  1. The reason was not recover the investment costs, but to simply allow a little guy a chance to get it to market. If you read about the history, you will see that this was really about the little guy. Many of America's founding fathers were opposed to patents, but thought that a very limited system would help the little guy.
  2. And this is exactly the opposite. In fact, the congress knew that this would stifle innovation and that was why the very short limit of exactly 7 years. Franklin even came up with a number of inventions that he release on the market freely to help innovations. I am actually surprised that the OSS world has not come up with pointing out that openness was heavily used by such as Franklin.

Re:Why even allow any patents? (1)

TheVelvetFlamebait (986083) | more than 7 years ago | (#17014070)

Why do people mod these comments up? How do these people see straight past all the good things about patents? I mean, it's kinda like abandoning your house because your TV is broken.

Re:Why even allow any patents? (1)

pipatron (966506) | more than 7 years ago | (#17014528)

That's because people like us has done a bit of research about patents, and how it affects invention and advance in technology.

My simple "obviousness" test: (1, Interesting)

Jesrad (716567) | more than 7 years ago | (#17013134)

My test is: get three experts in the field of application of the patent, have them read the title of the patent. If any of them guesses the method employed in the patent, send the application to the bin.

On a more serious note, patents shouldn't be checked for "obviousness", they should be checked for ingenuity instead.

Re:My simple "obviousness" test: (1)

Karthikkito (970850) | more than 7 years ago | (#17013728)

So just use ambiguous titles?

Re:My simple "obviousness" test: (1)

MooUK (905450) | more than 7 years ago | (#17014252)

Don't they already do that with the entire patent?

I wonder... How well would the following work?

If your patent is ambiguous, confusing, and not clear as to what it refers (and I don't mean just to patent lawyers), it should be legally interpreted as meaning the least beneficial thing to the filers.

Re:My simple "obviousness" test: (1)

gsslay (807818) | more than 7 years ago | (#17014040)

They can't use that test. I thought of it first, I have a patent on it and they're not using it until I get paid.

Better still, a test for dupes! (0)

Anonymous Coward | more than 7 years ago | (#17013160)

Maybe the Supreme Court could hand down some judgment on duplicate stories on Slashdot? Like this one: http://yro.slashdot.org/yro/06/11/26/0719254.shtml [slashdot.org] from Sunday...

Lionel Huts (0, Offtopic)

poormanjoe (889634) | more than 7 years ago | (#17013170)

"You have some people in industry who say, 'Oh, come on--you've got to be kidding me," said Timothy Teter, a partner in the intellectual property practice at the firm Cooley Godward Kronish in Palo Alto, Calif. "This is something we wouldn't ever bother to write down because it's obvious, and we're in a fast-moving field."

Obvious is something for the court to decide, but fast-moving field? So fast someone can't be contracted to document what you are doing at 70-80 words per minute. Or better yet voice recgonition.

Can you imagine a wolrd without lawyers?

Re:Lionel Huts (1)

toejam316 (1000986) | more than 7 years ago | (#17013302)

Sorry, I cant even imagine what a Wolrd is. Maybe a deformed walrus? Only time will tell...

Re:Lionel Huts (1)

bcross (720666) | more than 7 years ago | (#17013916)

voice recognition?.. thats just too obvious! :-)

Easy money (5, Funny)

tttonyyy (726776) | more than 7 years ago | (#17013192)

1. Patent "obviousness" test algorithm
2. Collect royalties recursively from patent office
3. PROFIT!

Re:Easy money (2, Funny)

DigitAl56K (805623) | more than 7 years ago | (#17013380)

Unfortunately there is already too much recursive prior art. See here [slashdot.org] .

Re:Easy money (1)

tttonyyy (726776) | more than 7 years ago | (#17013502)

Unfortunately there is already too much recursive prior art. See here [slashdot.org] .
You've overflowed my stack, you insensitive clod!

Obvious? (0)

Anonymous Coward | more than 7 years ago | (#17013196)

If someone invents a mouse with a button on it.....the first guy to put 2 buttons on it should NOT be able to pattent the idea. The software industry has been flooded with pointless pattents that don't require the least bit of ingenuity.... Like that pattent for the URL: Hello, has anyone ever heard of a file path?

We all know that the Pattent & Trademark Office has let some ludicrous things be pattented lately.

Re:Obvious? (0)

Anonymous Coward | more than 7 years ago | (#17013482)

what about a man, who puts a scrollwheel there?

Re:Obvious? (1)

salec (791463) | more than 7 years ago | (#17013902)

What about me :), thinking of foot-mouse (slipper-mouse, pedal-mouse, ...) so disabled people can use it (or people with both hands - we can keep them on keyboard all the time)? It would be a sort of computer mouse (a pointing device), only suitable to be operated (slided) by foot, over the floor, or over a special surface or mat instead of over the desktop.

Now, I don't think obviousness is measurable. "Foot mouse" IS VERY OBVIOUS, it just never (AFAIK) came to a mind (I admit, I taught of it this instant) and into a product.

Perhaps better patent validity criteria would be: "how useful the invention is (why is it better and what good comes from using it - savings, quality, etc...)" and "what (equivalent) amount of worth (money, time, work) should patent protect (the very point of patents - protecting investments in research)".

Besides, patents should be revocable if patent holder does not use it for the good of the public and his own but instead use it to fend off progress by sitting on it and not producing workable products offered to the public (i.e. a producer patenting better or competing product for the sole purpose of stopping others from developing better class of products that would put end to their product or industry, i.e. : energy efficient light bulb, electric car, ... etc. ).

Is there a "proper" way to ensure your idea will stay patent-free without patenting it (provided it hasn't already been patented by somebody else)? I have heard about "prior art" but how do you make it ? Post idea in "classified ads"? Mail it to Patent Office and get a receipt? How come ideas from Sci Fi get patented (by readers) when there is prior art? Does prior art have to be in the form of a patent application? Are algorithms in Free Software code automatically prior art against patenting them subsequently even though they are not formally described as such?

Effort (1)

little1973 (467075) | more than 7 years ago | (#17013228)

What about if the inventor has to show proof about his effort which made his invention possible? I mean if his invention is just a simple idea (like the metal wrapping of batteries in the article) with no real effort behind it then it is an obvious idea.

The patent system compensates the inventor for his time and money to make the invention. If there are no such things behind an invention then what the patent system compensates for?

For a more technical read on the case (3, Informative)

almost entirely lega (1029988) | more than 7 years ago | (#17013268)

http://www.law.com/jsp/article.jsp?id=116463689942 5 [law.com] is the law.com/Legal Times article on KSR International v. Teleflex, which will be argued before the Supreme Court today. As the article points out, depending upon how wide ranging a decision the Court issues, this case has implications for millions of patents, many of which have been considered unassailable, having stood up to years of attacks.

obviousness (inventive step) has been legalised (1)

Groote Ka (574299) | more than 7 years ago | (#17013300)

Because people were continuously looking for arguments why 'a person having ordinary skill in the art' would not arrive at the invention. And apparently, lawyers/patent attorneys were smarter than judges in digging up arguments why something would NOT be obvious. In the end, it currently boils down to the person skilled in the art really requiring an incentive to combine (with neon signs indicated almost) two teachings for something to be not obvious. Little bit to far on, I'd say (even as a (non-US) patent attorney).

How to proceed? Install a new standard? Sure, but not directly; gradually might be a good idea. The person skilled in the art is surely somewhat creative. If not, he would be a lousy engineer. This should also be taken into account when judging inventiveness/non-obviousness.

How to put that in arguments is another, but rather difficult issue...

Test for "obvious" problem (3, Insightful)

Dekortage (697532) | more than 7 years ago | (#17013312)

From the article: "Some say the lax rules have fueled the rise of patent speculators--disparagingly known as "patent trolls"--who make a living off predicting those incremental changes to existing high-tech inventions, landing patents and then going after companies for infringement."

This seems to be one of the real problems with the patent system: abuse. If you can predict the incremental changes to technology, then it suggests some kind of obviousness, no? Perhaps we need a "business reality check" test for patents: if you don't make a serious attempt to commercialize your patented idea with X number of years, then your patent dries up (or at least your potential damages are capped at Z number of dollars). The patent system should exist to protect ideas, not to line pockets with gold.

Re:Test for "obvious" problem (1)

seriv (698799) | more than 7 years ago | (#17013426)

It seems like this test is on the right track. I am not familiar with the current considerations the patent office makes when reviewing a patent application, but it seems like the patent office should review how much work the inventor(s) actually did on the area of research to which the patent applies. I think this test would bring the patent back to its true definition.

Performing an action at a particular place or time (1)

Conspiracy_Of_Doves (236787) | more than 7 years ago | (#17013372)

Will this affect patents that cover taking an action (either patented or public domain) at a particular place or time?

For instance, recording a music concert and burning CDs of it to sell there at the same concert.

Why not look at what patents are supposed to be? (4, Insightful)

mjs0 (790641) | more than 7 years ago | (#17013374)

At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.

The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society.

There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.

  1. Reward investment in deliberate innovation...The benefit to society is clear...by granting a temporary monopoly on an innovation, individuals and companies are incented to invest in areas that would otherwise not have a decent return on investment due to the ease of duplicating any innovation.
  2. Retroactively profit from incidental innovation...The benefit to individual companies is clear in the form of profits...however the benefit to the general economy and society is less clear but possibly present in the form of eliminating duplication of effort. A company or individual can retroactively identify innovations (that were not the primary goal of the investment) and patent these in order to license the technology to others. The societal benefit of this activity is significantly lower than (1) and certainly does not require or deserve the massive incentive that a patent delivers in the form of a monopoly on that innovation.

[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]

Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology from the original company if that is agreeable and makes more economic sense)

Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.

So here is my strawman proposal...

  • Patents should be returned to their original goal...a way to incent innovation by protecting those innovations that result from deliberate investments in R&D.
  • Institute a parallel system that allows companies to profit from incidental innovations if they have value. A way of facilitating the offering of such incidental innovations as commodities rather than legislating them as monopolies is what is needed and far more in keeping with a truly capitalist approach to this, i.e. let the market decide if the innovation is valuable. It would avoid the negative effect of a making these trade secrets patentable, which actually makes innovation in related areas harder to achieve. After all, projects which have a decent return on investment without patents will continue to get investment without patents. Why would we as a society give free profits for incidental innovations (effectively simply raising the price for all of us) that are a result of work that would be done anyway?

The effect of this proposal is to separate the reward systems for deliberate innovations and incidental innovations. It would drastically reduce the number of innovations that qualify for patents (deliberate innovations), but continue to encourage the licensing of incidental (but genuine) innovations as commodities, exposing them to market forces that would determine how obvious they were (i.e. if they truly have value people will pay for them, if they are obvious or exist elsewhere then they won't pay for them...simple.)

Patent rewards (2, Insightful)

GnuDiff (705847) | more than 7 years ago | (#17013378)

Assuming for a moment that all patents (even software) are valid, there is still a basic problem with the patent system.

The ultimate goal of a patent system is to benefit the society by encouraging invention. It does this by stimulating creative individuals. It seems that the individuals can now reap rewards, which are not proportionate to their inventions.

Let the potential reward for a patent should be, for example, at the maximum ten times the investment costs for the invention; after the inventor gets this amount of money, his patent becomes public domain.

So both for companies which invest in R&D, equipment, scientist salaries, etc, and the guy who thought of his knife+fork arrangement in his basement, their time and money are repaid tenfold - not a bad ROI, now?

Re:Patent rewards (1)

bcross (720666) | more than 7 years ago | (#17014054)

i believe the patent system is not only to encourage innovation but to give credit where credit is due. if i invent a completely original widget and it's the latest and greatest thing then i want to be compensated for it. i want to profit from it and my family should be as well. however if i take metal and wrap it around my leaky battery, I'm not gonna bother trying to get a patent. its a trivial idea and I'm sure i wasn't the first to think of it. i would just be the first to profit that isn't innovation, its just being first to the patent office.

The is (so far) mostly a US problem (4, Insightful)

Terje Mathisen (128806) | more than 7 years ago | (#17013388)

In most of the rest of the world, the required 'patent step' is significantly higher than in the US, where it seems to have been reduced to 'anything that at least some first-year students might not have thought about immediately'. :-(

About 10 years ago I was asked to do patent reviews on a group of 10 patents which company A would like to use to sue company B:

Of those valid US patents, 4 were really, really obvious, i.e. more or less the only reasonable way to solve a particular problem. AFAIK this means that the patent is automatically invalid, right?

The next group of 4 all consisted of taking a standard textbook algorith, without _any_ additional tweaks, and implement it as a VLSI chip.

The final 2 patents actually covered somewhat neat ideas.

Terje

It's a perfectly reasonable patent (1, Funny)

edwardpickman (965122) | more than 7 years ago | (#17013578)

I intend to fiercely defend my "On" switch patent. There is nothing obvious about pressing an "On" switch to start a computer as thousands of computer illiterates can attest to. I also plan to defend my plugging computer into wall socket patent. Thousands of other techically challenged have been aided by my patent on this process. My "On" switch patent on monitors is still pending but hopefully that should be approved any day now. It's horrible and unamerican challenging my right to patent everything in sight. Please remember to send me a dollar if you turned your computer on today.

Book value of "Intellectual Property" (1)

dunstan (97493) | more than 7 years ago | (#17013740)

The article skims the big vested interests who have an interest here. There are many, many big corporations whose book value is justified by the monetary value of their patent portfolio - or "Intellectual Property" as most of them call it. Any changes in the patent validity could have a huge impact on their share prices.

Expect vested interests to dig their heels in.

Isn't it strange.. (0)

OneSmartFellow (716217) | more than 7 years ago | (#17013872)

...that once you understand something fully, it is obvious that it should be that way, but until you understand it fully, it is a mystery and confusing.

Examples: Pythagorean Theorem, Fundamental Theorem of Integral Calculus, PnP junction, I could go on for ever (almost).

My point, let's be very careful what we classify as obvious, someone may have spent a lot of time and effort making it that way, and I don't see why they shouldn't wreap the reward for doing so.

Re:Isn't it strange.. (0)

Anonymous Coward | more than 7 years ago | (#17014978)

We should also consider the driving force that an assured 17 years of exclusive hypotenuse length calculation monopoly was to Pythagoras. Why, if he didn't have that assurance of profit, I doubt he would have bothered at all.
You know, a lot of mathematical breakthroughs today are made only because companies have poured billions of dollars into R&D, and it wouldn't be fair if other people could just adapt, extend and build upon those results without compensating the rightholders. Why, if mathematics hadn't been patentable, we wouldn't have any innovation in the field at all!

my question (1)

Nocturnal Deviant (974688) | more than 7 years ago | (#17014236)

Is why they don't go over the old ones as well, there are quite a few bogus patents out there hampering development....

the real shame here (1)

darkchubs (814225) | more than 7 years ago | (#17015054)

is that, it takes mega corps to initiate a review of these things, and the Irony that it was obvious that the obviousness was obviously overlooked.

Opposition quotes (1)

sadangel (702907) | more than 7 years ago | (#17015666)

A quote from the end of the article:

"I don't think U.S. industry is going to stand for a huge cloud being placed on their valuable patent portfolio," said Mossinghoff, the former patent commissioner.

Yet Microsoft, Google, Oracle, Intel, and Cisco, companies with immense patent portfolios are all completely behind changing the rules.

I also got a kick out of the opponents who claim this will ruin the "predictability" of the patent request process. I suppose knowing you're going to get a rubber stamp is predictable and even equitable in its own little way.
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