Supreme Court Agrees To Look Into Patent Obviousness

from the wow dept

We first wrote about this case over a year ago, but it’s still a bit surprising to hear that the Supreme Court has actually agreed to hear the KSR v. Teleflex case that questions what’s the standard for “obviousness” in awarding patents. The patent act makes it clear that patents are only supposed to be awarded on ideas that are non-obvious to those who are considered skilled in the field. As has been discussed, in recent years the patent office and the courts have focused only on prior art as the standard for obviousness. However, just because something hasn’t been patented, written about in a journal, or even done before it doesn’t mean it’s not obvious to those skilled in the art. In fact, as someone pointed out in our comments, the law clearly separates the issue of “new” from “obvious” suggesting that they intended for two separate tests on patents. However, many patent lawyers (and patent hoarders) love the lower standard, since it allows them to get a lot more patents for obvious things, as long as no one can find any prior art. They like to claim it’s impossible to come up with a test for “obviousness” even though the courts have no problems coming up with similar tests for other ambiguous terms (“reasonable person,” “reasonable doubt” etc.). This whole thing becomes even more problematic as the ability to patent a wider sphere of things has come about. It used to be thought that you couldn’t (or shouldn’t) patent business models or software — so there’s even less “prior art” in those areas on incredibly obvious things. Having a real test for obviousness would preclude an awful lot of the patents that we see companies being held hostage over.

In this particular case, one firm took two different off the shelf components and used them together. It didn’t even use them in ways different than what they were supposed to do — it just used them together (similar to NTP’s patents that simply combined “wireless” with “email”). For that, they got a patent. KSR claims that such a move should be considered obvious, and that the Patent Act has a standard that is not being applied to patents. This is a huge case in the patent world — and could have tremendous implications on the patent system if the Supreme Court does, in fact, decide that the Patent Office and lower courts have been incorrectly applying the test of obviousness.

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Comments on “Supreme Court Agrees To Look Into Patent Obviousness”

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Thomason says:

Obviiate the suggestion/motivation test

IMO, the big question is whether the Supremes will retain a test of non-obviousness that the combined prior art must have a suggestion of combining the separate elements. I doubt that anyone wishes for patents on obvious inventions (contra Mike’s insider knowedge of “lawyers” and “hoarders”), but there is a world of disagreement about how to assess whether an invention “would have been obvious” to one skilled in the field. The lowest standard would be that any combination of known elements is obvious. (the Mike-like standard). The higher test allows the Patent Office to determine that an invention would not have been obviousif the prior art does not show the combination, or suggest it.

Perhaps both tests have the same flaw – being overinclusive – the lower denies patents to non-obvious inventions, the higher allows patents to seemingly obvious ones.

Mike (profile) says:

Re: Obviiate the suggestion/motivation test

I doubt that anyone wishes for patents on obvious inventions

Have you read some of the arguments made by people against me? They basically claim that if a patent was granted, then it clearly was not obvious.

Also, they claim that there can be no test for obviousness that isn’t about prior art.

The lowest standard would be that any combination of known elements is obvious. (the Mike-like standard). The higher test allows the Patent Office to determine that an invention would not have been obviousif the prior art does not show the combination, or suggest it.

The lower standard is not what I’m suggesting. I’ve suggested in the past, rather, that there be a peer-review element that allows those who actually are skilled in the art to weigh in on the relative obviousness of the patent — and then still leave it for the examiner to decide whether or not those arguments are credible. This way, the examiner doesn’t just see what the prior art says, but also what those in the field know is coming next.

My other test for obviousness is if multiple individuals apply for extremely similar patents before either one is published. That would suggest pretty clearly that multiple people in the field are coming to the same conclusions — and, thus, none deserves specific protection, since the market can decide which is best.

The point of the patent system is supposed to be to encourage innovation where the market has failed on its own to encourage that innovation. If there’s clearly plenty of innovation going on, it’s not clear why patent protection is then needed.

Greg says:

Obviiate the suggestion/motivation test

While I strongly agree with your motivation (I think issuance of obvious patents strongly deters innovation), I think there are a couple flaws with your argument Mike.

One is that the peer review process might be biased towards declaring obviousness due to hindsight and ‘questionable’ motivations, but this is definitely arguable.

Second, multiple individuals attempting to patent similar inventions does not necessarily imply obviousness. The invention of the telephone, where Bell just beat his competition in gaining the patent would apply here. I think the telephone was definitely not an obvious invention.

All this being said, I really hope the courts boost the obviousness requirement somehow. I’m disgusted at how packs of lawyers producing nothing can stand in the way of truly innovative people.

angry dude says:

“Second, multiple individuals attempting to patent similar inventions does not necessarily imply obviousness. The invention of the telephone, where Bell just beat his competition in gaining the patent would apply here. I think the telephone was definitely not an obvious invention.”

In Mike’s view telephone would be obvious to anyone…

You know, hindsight is always 20-20

The real issue, however, is whether those lone inventors would work like crazy days and nights to be the first in the absense of a patent system.

In fact, they would not… nobody would work on something like telephone, which when released to the world, could be easily disassambled and reproduced by any large manufacturer at a fraction of a cost to the original inventor.

This is how market works under capitalism – kill the smaller and weaker competitor before he kills you. Dog-eat-dog corporate zoo…

And this is precisely the reason why patents are absolutely necessary for progress in a capitalistic society.

Under some other systems, e.g. in the old Soviet Union, patents did not exist as such, and yet plenty of scientific and technological progress was achieved because the State owned everything. It was an inefficient but workable model of innovation – the State would reward the original inventors and creators, not the market…

Of course, the telephone would eventually be invented(but maybe some 20 years later) by some folks at some corporate lab capable of immediate mass production

Eric Norman says:

Obviousness test

I’ll mention one test that could be applied to test for “obviousness”. Perhaps it’s already used; I’m not that much of an expert.

The test is this: was this capability merely enabled by new technology?

For example, the web has been invented. There are web pages with useful information scattered all over hither and yon. Someone comes up with an idea and implements a process that crawls the web every night, follows links, and so forth and makes available an index sorted by author, title, or keywiords abd makes that index available on the web. I’m talking about the idea of a search engine. Is creating that process ovious? I say yes. It’s the same thing that librarians have been doing for a long time when they make card catalogs. The difference is that the process was time consuming with old technology, now it’s not.

So I would classify this process as new — sure, useful — no doubt about it, clever (not obvious) — no.

Now Google comes along with an idea about how to order the skillion or so cards in the catalog so that what someone sees first is probably what they want. That’s not obious, but the mere process of spidering the web to collect the information is obvious. Which I reckon that the only claim that should be allowed regarding things like search engines are the latter, but not the former.

Rocket Scientist says:

Know whats coming next!!!??

What a freakin idiot. I guess the peers who “know what’s coming next” have crystal balls (and no desire to file patents themselves) and you apparently have brass balls for pretending to know anything about patents…

And of course Mike continues to ignore the fact that peers or third parties can submit their own art. The problem with Mike’s “solutions” is that they involve vague notions, hearsay, and innuendo. In the real world Mike, the legal process requires hard evidence so that idiots like you can’t just say, “Oh that would be obvious, cause I’m so freakin smart and impressed with myself”

Hoppe says:

Why Socialism (trashing the patent system) is a ba

The Intellectual Cover for Socialism

by Hans-Hermann Hoppe

Compared with life in Western countries, where the socialist sector is sizable, life under total socialism is miserable.

The standard of living is so deplorable that, in 1961, the socialist East German government built a system of walls, barbed wire, electrified fences, minefields, automatic shooting devices, watchtowers, watchdogs, and watchmen, almost 900 miles long, to keep people from running away from socialism.

The empirical evidence shows that socialism is an obvious failure. And the cause of socialism’s failure is crystal clear: there is almost no private ownership of the means of production, and almost all factors of production are owned in common in precisely the same way that Americans own the Postal Service.

Why, then, do seemingly serious people still advocate socialism? And why are there still thousands of social scientists who want to put more and more factors of production under social instead of private control?

For one thing, of course, some socialists might simply be evil. They might have nothing against misery, especially if it is only misery for others, and they are in charge of administering it while living very well indeed.

But I am interested in those who advocate socialism because it is allegedly more “value-productive” than capitalism. They claim that the evidence showing otherwise, as in East Germany, is beside the point, or perhaps merely accidental.

But how can anyone deny that the East German or Russian experience is decisive evidence against socialism? How can people get away with promoting the absurd view that the evidence against socialism is merely fortuitous?

The answer lies in the respectable-sounding philosophy of empiricism. It is empiricism that shields socialism from refutation by its own failure, and gives socialism whatever credibility it still has.

That’s why the Misesian critique of socialism attacks both socialism and empiricism. It explains that there is a necessary connection between socialism and lower living standards; the Russian experience is no accident; and the empiricist’ attempt to make it appear an accident is founded on intellectual error.

Empiricism is based on two fundamental assumptions: first, one cannot know anything about reality with certainty, apriori; and, second, an experience can never prove definitively that a relationship between two or more events does or does not exist.

Using those two assumptions as the starting point, it is easy to dismiss empirical refutations of socialism.

The empiricist-socialist does not deny the facts. In fact, he will (reluctantly) admit that living standards are deplorable in Russia and Eastern Europe. But he claims that this experience does not constitute a case against socialism.

Instead, he says, the miserable conditions are a result of some neglected and uncontrolled circumstances that will be taken care of in the future, after which, everyone will see that socialism means higher living standards.

With empiricism, even the striking differences between East and West Germany can thus be explained away. The empiricist says, for example, that it’s because West Germany got Marshall Plan aid while East Germany had to pay reparations to the Soviet Union; or because East Germany encompassed Germany’s less developed, rural provinces; or that the mentality of serfdom wasn’t discarded in the East until much later; and so on.

Not even the most perfectly controlled experiment can change this predicament, because it is impossible to control every variable that may conceivably influence the variable we want to explain. We don’t even know all the variables making up the universe, which renders all questions permanently open to newly discovered experiences.

According to empiricism, there is no way that we can rule out any event as being a possible cause of something else. Even the most absurd things-provided they have taken place earlier in time-can be possible causes. Thus there is no end to the number of excuses.

The empiricist-socialist can dismiss any charge brought against socialism so long as it is based only on empirical evidence. He can claim that since we cannot know what the results of socialist policies will be in the future, we have to try them out and let experience speak for itself. And no matter how bad the results may be, the empiricist-socialist can always rescue himself by blaming some heretofore neglected, more or less plausible, variable. He makes a newly revised hypothesis, and it is supposed to be tested indefinitely.

The empiricist says that experience can tell him that a particular socialist policy scheme did not reach the goal of producing more wealth. But it can never tell him if a slightly different one will produce better results. Nor will experience tell him that it is impossible to improve the producion of goods and services, or raise living standards, through any socialist policy at all.

Now we see just how dogmatic the empiricist philosophy actually is. In spite of its alleged openness and its appeal to experience, empiricism is an intellectual tool that completely immunizes one from criticism and experience. It is the perfect intellectually dishonest means for shielding socialism from the glaring truth of its own failure.

Misesian economics shows that socialism fails because it violates the irrefutable laws of economics-among them the law of exchange, the law of diminishing marginal utility, the Ricardian law of association, the law of price controls, and the quantity theory of money-which can be deduced from the axiom of action by means of applied logic. And thus we can know-beforehand and absolutely-what the consequences of socialism will be wherever it is tried.

If we want to attack socialism, we must also attack the absurd intellectual error of empiricism. And if we want to defeat socialism, we must make a principled Misesian case based on the logic of human action and the irrefutable laws of economics.

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