Investigating The Obviousness Of Software Patents

Legal Issues

from the can-you-look-at-obviousness? dept

In many of our discussions about the patent system, one of the big debates between those who think the system is just dandy and those who have problems with it concerns the question of “obviousness.” One of the stated tests for whether or not a patent should be granted is whether it is non-obvious to a person who is skilled in the art. However, the way the patent office currently looks at things, they only look for prior art to prove obviousness. In most cases, prior art either means earlier patents or published journals. There can be plenty of other prior art, which is a problem, but it’s worth examining whether or not prior art is actually needed for obviousness. Just because something hasn’t been done before, it doesn’t mean that it’s not the next “obvious” progression in the art. However, those who fight against this view (often patent lawyers) claim that it’s impossible to have any test for obviousness because those who are “skilled in the art” will think anything is obvious in retrospect (perhaps out of professional pride for not having thought of it first) and because it’s impossible to define obviousness for someone skilled in the art. The first claim seems to take a dim view on human nature. The second raises questions about all sorts of other similar tests in the law (how do you define “reasonable” in “reasonable person” tests, for example).

So, is it possible to look at the obviousness of a patent? Tim Lee, over at Tech Liberation Front, is starting a new project each week to examine a different software patent. This week, he’s looking at the flight simulator patent that was used to try to stop the distribution of Google Earth. Lee points out how the patent meets the qualifications of obviousness, while also showing just how broad made of the claims are — going well beyond protecting a single invention. It seems like a good demonstration of how someone can explore the obviousness of a patent, without necessarily delving into the specific prior art — and it certainly does not appear to be a case of Tim’s “professional jealousy” trying to invalidate the patent. Rather, he points out that the various claims are fairly obvious, and just about any decent programmer would use the same approach in creating a similar flight simulator system. So, even if this specific solution had not been done before, anyone attempting to tackle a flight simulator program would likely do the same thing. In that case, what benefit is there to granting a monopoly to just one player?