Supreme Court Ruling On Patent Obviousness Already Having An Impact

from the and-that's-a-good-thing dept

Back in April, the Supreme Court made an important decision raising the bar for what would be considered “non-obvious” in patents. Given the incredible increase in obvious patents (and the businesses being built up to use those patents to hinder, rather than help, innovation) this was a huge victory for those worried about how the patent system was harming innovation. It looks like this KSR v. Teleflex ruling is already having an impact. In 2003, we wrote about Friskit, a patent hoarding company that was suing Real Networks over what looked like three obvious patents dealing with searching a network for streaming media. A judge had let the case move forward, but with the Supreme Court’s ruling, the judge has changed his mind, saying that the patents were obvious. The judge based his decision on the KSR decision, saying that the patents were simply a combination of ideas and inventions that were all publicly available — and combining them was an obvious next step. This is exactly what the Supreme Court intended, and hopefully more judges will start following suit in throwing out these wasteful patents and patent lawsuits. Amusingly, the article quotes a patent attorney (of course) complaining that somehow this will bring about more lawsuits — but that’s not necessarily true. The massive increase in patent litigation over the past few years has been because the USPTO and the courts were approving and enforcing so many questionable patents, making it seem like a good business to simply hoard patents and threaten lawsuits. If the courts make it clear that such bogus patents will get tossed quickly it will create less incentive for bogus patents to be filed and for bogus patent suits to be brought in the first place.

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Companies: ksr, teleflex

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Comments on “Supreme Court Ruling On Patent Obviousness Already Having An Impact”

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20 Comments
Propeller Hat says:

Re: Patent lawsuits

I agree with you in general. Just wandering what a challenging move like ” ..saying that the patents were simply a combination of ideas and inventions that were all publicly available — and combining them was an obvious next step…” will do to the majority of patents out there?
There isn’t anything new under the sun – REALLY, and any inventive step becomes obvious ones its proven to be useful, so who are going to be the big loosers? The people and companies that invested in IP.

Propeller Hat says:

Re: Re: Re: Patent lawsuits / Mike

As i said, i agree that there are many non-sensical and ineffective patents clogging the system. But that is a reflection of the existing patent system.
Its a bit late to move the goal posts now.

Say you paid one year ago $100.000 to the USPTO and received full blown patent protection under PCT (Patent Cooperation Treaty i.e. international patent) and started a company with 20 people manufacturing and exporting your product with a 200% profit margin based on YOUR technology.

Some guy in France decides that you should have never recieved that patent and challenges it. The USPTO (the same one that took your money and told you, you are protected for 20 years) decides the French guy is right, your patent … is simply a combination of ideas and inventions that were all publicly available — and combining them was an obvious next step…” and your patent is Null and Void.
There is no real protection in expertise – not after the technology has hit the market and there is a lot of profit in it.

How would you feel?

Mike (profile) says:

Re: Re: Re:2 Patent lawsuits / Mike

Propeller Hat sets up a very specific scenario:

Say you paid one year ago $100.000 to the USPTO and received full blown patent protection under PCT (Patent Cooperation Treaty i.e. international patent) and started a company with 20 people manufacturing and exporting your product with a 200% profit margin based on YOUR technology.

Some guy in France decides that you should have never recieved that patent and challenges it. The USPTO (the same one that took your money and told you, you are protected for 20 years) decides the French guy is right, your patent … is simply a combination of ideas and inventions that were all publicly available — and combining them was an obvious next step…” and your patent is Null and Void.
There is no real protection in expertise – not after the technology has hit the market and there is a lot of profit in it.

And then asks:

How would you feel?

This is an emotional, not a reasonable question. Of course it would suck to be in that position… but rather than being mad, what you do is NEVER GET YOURSELF IN THAT POSITION IN THE FIRST PLACE. The guy who relies on his patent for his business model is taking a risk, just like the guy who builds a factory on a faultline. It might go away. That’s the risk you take. If you’re a smart business man you figure out which risks you would take.

My argument is that it’s a much bigger risk than most people think to bet your business on a patent. It’s a dumb risk and there are much better ways to go about building a business if you have a truly innovative idea.

Propeller Hat says:

Re: Re: Re:3 Patent law with moving goal posts

Agreed.
It doesn’t matter how you feel.
My question was more about the ‘moving goal posts in patent law’.
You paid for an IP product to protect you, which it didn’t.
Your business is going broke so you sack your workers, move manufacture to China so you can compete with that french guy producing a very good copy of your product.
Large corporations invest successfully in IP, and you thought it might protect you too?
Bad luck.

So Mike, apart from NOT investing in IP, how would you avoid that position in the first place?
I am interested because i am about to take that step.

Emergent says:

Obvious patents

I think this is great. I felt that the NTP vs. RIM was a bogus patent suit. It was even later determined by the USPTO that the NTP patents were obvious and nullified the patents. Of course this was after RIM paid millions to NTP. Then of course, everyone else felt they should sue RIM for infringment as well. All their suits are based off of NTP’s suit and should also be dismissed with prejudice. Torts have become a revenue source for business these days. Most patents (technology wise) have never even been implemented and are simply an idea or dream. What would have happend if the sci-fi writers of the 40’s and 50′ patented their idea of traveling to the Moon or even just simply space travel.

I feel that in order for one to patent anything, it must be shown to actually work and be used by a specific number of people or other business. In other words, if NTP wanted to patent wireless email, they should have had to be required to actually have wireless email technology for sale to the public as some kind of a service before the patent could actually be awarded. I see no purpose served by patenting technology that does not yet exist or an idea that cannot be materialized due to technology limitations!

Anonymous Coward says:

Re: Obvious patents

Well, requiring that some service be implemented before the patent is awarded won’t work. there are some people who can’t afford to implement their patent. Thats why I think that when the patent is awarded, the life of the patent is much shorter. If within that time, a service is implemented based off the patent, then its extended to the full life of the patent. This way, it allows time for the inventor to either build a business based off the patent or just sell it AND it won’t allow people to just hold on to patents waiting for someone else to implement the service. There will be incentive to actually use patents and less incentive to just hold on to them.

Killer_Tofu (profile) says:

Yesterdays Article

There was a post yesterday about an obvious idea Microsoft submitted for patent about TVs being able to watch who is in front of them for targeted ads.
There were some good ideas, and some fear type posts in the replies.
I am just saying that with moves like these, hopefully such an obvious idea as targeted ads (through any medium) will not be patented by M$ (or any other company or organization).

Overcast says:

Well, requiring that some service be implemented before the patent is awarded won’t work. there are some people who can’t afford to implement their patent.

Yes, I believe that was the whole reason and intent of the patent system…

Years ago *most* people didn’t have the tools to develop anything more than a crude prototype – if anything other than just an idea. So a system was devised where they could ‘protect’ their idea until funding was available – or sell the idea to a company who had the funds to make it happen.

Really – I do agree with Emergent to a point too – but I think perhaps, we should implement a patent protection system that varies for individuals as opposed to a corporation. We have to keep in mind how it will impact the individual innovators as well. I believe the whole patent system was designed for them – really.

Afterall, if I came up with a way to teleport matter; shouldn’t I be able to patent that? But, no normal person would have the funds available to finance something on that scale, even if they could prove it scientifically/mathematically. A corporation, of course – would put that to use right away.

In both cases, a tighter time line would solve many issues. Perhaps the time line should be tighter for a corporation as opposed to an individual. If GE was to patent a matter teleportation system, I guarantee it would be in production the second they had the major bugs worked out, if nothing else they would have a workable prototype in weeks – if not days.

Patent Attorney says:

Re: Requrements for Patenting

Well, requiring that some service be implemented before the patent is awarded won’t work. there are some people who can’t afford to implement their patent.

… and …

Yes, I believe that was the whole reason and intent of the patent system…

The “reason and intent” was to encourage inventors to tell the public about their ideas in exchange for a period of exclusivity in making, using, and selling embodiments of the invention. One of the requirements for getting a patent is that one disclose enough to enable a person of ordinary skill in the relevant technology to make and use the invention in the best way known to the inventor at the time the application is filed.

You can patent your teleporting invention without making one, as long as you can describe it sufficiently for one to be made. This achieves the “telling” part of the quid pro quo that underlies the system.

Propeller Hat says:

Re: Sour Kraut

Are you slighlty off topic or am i missing a thread?

‘Sauerkraut’ is German and stands for pickled cabbage.

Describing food stuffs it’s slightly more precise than ‘Hot Dog’

‘Hamburger’ is German too really, but not very well known.
And Hamburgers contain ‘Pickles’ – pickled cucumbers.

fascinating really.

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