One of the biggest issues we discuss repeatedly concerning patents is the fact that the patent office seems to have completely disregarded the fact that a patent needs to be "non-obvious to the skilled practitioner." In fact, we pointed to a perfect example of this last month, when two companies were arguing that they each were granted patents on the same thing. So far, the two are simply arguing it out in the courts over who gets to keep the patent (and it may differ by geography!), but it seems pretty clear that if two separate companies in the same space came up with the same thing, then it should invalidate both patents, as they've just proven that it's an obvious "next step" in the evolution of the technology in question. It appears that this issue may be getting a bit more attention. Larry Lessig points to an amicus brief filed by The Progress & Freedom Foundation pointing out that the test for obviousness needs to be changed. In the case in question, a lower court decided that the test for obviousness was whether or not anyone else had suggested something similar before. That's prior art -- not obviousness. The problem is often that many skilled practitioners in a field are all coming up with similar solutions independently, just by understanding the evolution of a technology or process. Is it really fair to lock up the solution to just the first person who gets there (or even just the first person who filed for the patent), even if the others achieved the same result independently? The first comment to the Lessig post comes up with an interesting idea to test the "obviousness" of a patent. The patent office would reveal the claim of the patent -- but not the method for a certain period of time. During that period of time (the commenter suggests two years), anyone else can see if they can duplicate the claims of the patent. If they can, then it suggests the patent in question is not valid, and the idea was obvious. It might be difficult to put into practice, but it is an interesting idea that would severely cut down on bogus patents and would ensure that the patents that really did make it through were new concepts. Of course, just because you invent something new, it doesn't mean the market actually wants it. That's where the real innovation comes in -- and patents really shouldn't matter.
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