US Patent Office Makes It Harder To Reject Patents For Obviousness
from the that's-not-good dept
The David Kappos-run USPTO seems to just get worse and worse. Already this year, we had noted that the patent office, under his charge, had started approving patents at an unprecedented rate, after a few years of corrections. It’s become quite obvious that Kappos is pushing to get more patents approved, rather than fixing the patent system or making sure that it works to actually help innovation. I don’t know why he’s doing so, but it’s quite troubling. The latest indicator of this is the fact that the USPTO has issued new guidelines on obviousness that effectively make it much harder for examiners to reject patent claims as obvious (found via Slashdot).
For years, one of the biggest problems with the patent office was that it approved all kinds of obvious inventions as patentable. Patents are only supposed to be given for things that are both new and non-obvious to those skilled in the art. However, for the most part, examiners focused solely on the “new” part (as determined by prior art) and effectively ignored whether or not it was obvious to those skilled in the art. Finally, in 2006, the Supreme Court agreed to look at the standards for “obviousness,” leading to the Teleflex v. KSR ruling that basically said the USPTO (and the courts) had to really start looking at obviousness as separate from newness. In response, the USPTO put out a set of guidelines, including seven “tests” for obviousness — and many examiners seemed to make use of these tests, as more patents got rejected, with obviousness often being the reason.
Yet, these new guidelines simply delete four of the tests. So, we’re back down to just three tests for obviousness, which significantly limits the likelihood that examiners will reject patents as obvious. The end result? A lot more obvious ideas getting patented, followed by a lot more gridlock and needless lawsuits and transfer payments in the market — and a huge tax on innovation. What a shame.