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IBM And Amazon Also Dueling With Nearly Identical Patent Applications
from the well,-look-at-that dept
While there's been a ton of attention pointed at the patent infringement lawsuit IBM filed against Amazon for a bunch of excessively broad patents, someone who prefers to remain anonymous has pointed out an interesting quirk s/he discovered while doing some patent searches. It's likely to be totally unrelated to the lawsuit, but both IBM and Amazon apparently filed applications for extraordinarily similar patents on the same day (perhaps within minutes of each other, as the application numbers are only one apart). IBM's describes a system for for distributing and billing for third party web services, while Amazon's more succinct version is for a marketplace for web services. They're essentially describing the same thing, neither of which was a particularly unique idea. The anonymous submitter wonders if it's just a coincidence that the two firms filed such similar patents on the same day, or if, perhaps, there's something more going on behind the scenes. Either way, it would seem that even beyond the question of general obviousness, the fact that two companies in the space filed for very similar patents at almost the exact same time should be reason enough to deny both applications. The patent system is only supposed to grant patents for ideas that are non-obvious to those who are skilled in the art. If multiple parties who are skilled in the art are submitting the same thing to be patented at the same time, then it would seem to fail that very basic test. It is, clearly, an idea that was seen as an obvious next step to multiple people skilled in the art.
Reader Comments
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And it never occured to you ... ?
That two individuals or companies can spend or work for mega billions towards the same idea and apply for the patent on the same day?
Maybe it is rare, but does it imply that no-one gets a patent? Although I agree with you that the test for obviousness is a huge hole in the patent system.
What I don't understand is why does not some company like RIM sue the hell out of the USPTO for all the mess that it creates?
Well in any case, I cannot possibly imagine a scheme for the obviousness test. Can you Mr. Mike?
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Re: And it never occured to you ... ?
That two individuals or companies can spend or work for mega billions towards the same idea and apply for the patent on the same day?
It's possible. Absolutely. Which is why we say that it could be a coincidence.
Well in any case, I cannot possibly imagine a scheme for the obviousness test. Can you Mr. Mike?
Well, it can be a multi-part test, starting with the simple fact that if multiple people apply for the same basic thing within a short period of time, you've failed the test.
Other ideas that people have suggested include some sort of "peer review" that can advise the patent examiner on obviousness. There's also the idea of looking at the general trends in the industry to see if this is the next obvious step. There are lots of ways to develop a test. Recognize, that tests in the legal sense don't have to be quantitative. In courts there are tests like "reasonable doubt" "average person" etc. So why isn't there the same thing in the patent office for "person skilled in the art." There should be. The patent law suggests that's it's a part of the law. But it's not being done.
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History
Bell beat Grey to the patent office by what, hours? Both invented the telephone independently. It can happen, and the fact is *not* enough to rule the thing non-obvious - it just means it was possible for two people to figure it out. Now if 10,000 people submitted the application, that might be different.
None of this bears on the actual merit of the patent, natch.
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Re: History
Bell beat Grey to the patent office by what, hours? Both invented the telephone independently.
Yup. And neither should have gotten the patent. Because Bell got it, it kept competition out of the telephone market for years.
It can happen, and the fact is *not* enough to rule the thing non-obvious - it just means it was possible for two people to figure it out. Now if 10,000 people submitted the application, that might be different.
It does not need to be 10,000. It's not about it being obvious to the masses or to the average person, but to those "skilled in the art" which is likely to be a small number. In this case, if two of the biggest firms employing many of the people who are "skilled in the art" come up with the same thing at the same time, it's a pretty damn good case in the making for obviousness.
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pretty soon you're going to get sick of writing out what the patent system is supposed to be for... just accept what it has become...
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ordinary practioner
The test is apparently that an invention cannot be patented if it is obvious to the ordinary practioner in the art. Suppose we divide the practioners into quintiles with the third quintile then being the middle of the road ordinary practioner. There will be some inventions which are not obvious to that middle quintile and yet are obvious to any of the 40% of practioners in the first and seond quintile - but they are still patentable.
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You sound like a 10 year old person
Buying things from an online catalogue is NOT AN OBVIOUS IDEA . Online shop is not an obvious idea . There is nothing obvious in buying thing off the Internet if it is 1992 .
It is obvious NOW , because of the R&D invested in it by others , like IBM.
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Re: You sound like a 10 year old person
Buying things from an online catalogue is NOT AN OBVIOUS IDEA . Online shop is not an obvious idea . There is nothing obvious in buying thing off the Internet if it is 1992 .
Sure it was. Not sure where you were in 1992, but there was plenty of talk about how the internet could become a great big virtual mall.
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