EFF Tells The Supreme Court How Obviousness Isn't Obvious When It Comes To Patents

from the it's-a-problem dept

We’ve been following the KSR v. Teleflex case for a while, as it’s an important legal case concerning the future of the patent system. If you recall, it’s a patent infringement lawsuit where one side is claiming that the patent is quite obvious and never should have been granted (patents are only supposed to be granted for ideas that are non-obvious to a skilled practitioner). In this case, it was taking two commonly used ideas and linking them together — which plenty of people (including the defendant in the case) suggested was completely obvious. Many people stepped up to point out that there really isn’t a test for obviousness, despite the requirements of the patent system. The court system currently uses prior art as the only test for obviousness — but it’s possible for an idea to be obvious without it having been written about in a journal or earlier patent. However, for years the patent office and the courts have disagreed, basically ignoring the “and” statement in the “new and non-obvious” requirement for getting a patent. Back in June, the Supreme Court agreed to hear the case, and now the EFF has stepped up and filed an amicus brief, pointing out the problems of the current obviousness test. As they say it, “has forced litigants to search through haystack upon haystack of technical knowledge for the exact needle in which someone, somewhere, bothers to state the obvious.” When you need to “search through haystack upon haystack” to prove “obviousness,” something seems wrong. Having a better test for obviousness makes a lot of sense. We’ve all heard too many stories of “obvious” ideas getting patents, and if the idea of the patent system is to promote new and novel ideas, we’re all better off (well, perhaps not the patent attorneys) if obvious patents aren’t granted.

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “EFF Tells The Supreme Court How Obviousness Isn't Obvious When It Comes To Patents”

Subscribe: RSS Leave a comment
Aaron Friel says:

Haystacks? Obviously.

I think it makes a lot of sense that they would have to search very hard to find out that someone, somewhere already knew about something, and that the filer of the patent wasn’t the originator of some new idea. For example, the ‘one click patent’ that Amazon owns. Who really thinks that isn’t an obvious idea? Yet the only reason Amazon still holds that patent is because nobody wrote down anywhere that when able to do something in n clicks, or doing it in n-1 clicks, the fewer clicks the better. Nobody wrote it down. I’m sure maybe, just maybe there’s a style guide out there for web design that says “Extraneous clicking wastes your users time: speed things up by requiring fewer clicks for simple actions.” Oh, wait, that might constitute prior art.

Yet every bloody webdesigner (worth anything) on the planet knows that the more loops you make a user jump through, the less likely they are to do anything.

Blackboard Licks An Anus says:

Re: Re: Haystacks? Obviously.


I don’t know if you mentioned this one before but the course management system known as Blackboard is suing people over a patent on having roles in courses i.e. having a student, faculty, or teaching assistant role in a bloody online course. Blackboard is not only crappy software, it is a monopoly trying to corn hole higher ed and bend over K-12.

Araemo says:

A proposed test for obviousness:

Find out what ‘problem’ the patent is designed to solve.

Ask 3 ‘expert practitioners’ in the field how they would solve the ‘problem’. If any of them suggest what the patent is trying to patent, it may be obvious. (Exact details of how many to ask and how many need to suggest it to be ‘obvious’ is not something I’m trying to suggest.. just the general idea of asking experts how they would solve/implement something.)

Clifford VanMeter (user link) says:

Not so Common Sense --

Ask 3 ‘expert practitioners’ in the field how they would solve the ‘problem’. If any of them suggest what the patent is trying to patent, it may be obvious.

Lay all the experts in a field end to end and they still wouldn’t reach a conclusion.

The problem is that the idea of common sense is antithetical to the law. Lawyers see to that. Isn’t it a fine example of the problem itself that even on this site, we’re having trouble coming up with a definition of obvious, even though we’d all recognize “obvious” if we saw it?

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...