Investigating The Obviousness Of Software Patents

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?
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  1. identicon
    Thomason, 16 Jun 2006 @ 11:03am

    Obvious, please

    Is there any software patent that does not use programming steps already known to programmers? If the patent law didn't require inventions to be non-obvious, then would not every combination of these known programming steps be arguably an obvious combination?
    Back in the old days, when memory and computing power were more limited, the real innovators could write software that was amazingly more efficient than what hacks could write. It's comparable to prose writers, who can say in a sentence, what others run on about for paragraphs.
    That's where I suppose Mike and I differ about what defines a patentable invention. Mike wants it to be earth-shattering, or pioneering, or previously-unthinkable. I prefer to award exclusive rights to those who make things better, more efficient, wiser, cheaper, easier, more-troublefree - the difference between a work of inventive genius, and something ordinary and workmanlike can be seen and has to be appreciated. Give that man a patent!!

    P.S. I agree that patents on "concepts" that might be implemented in software are a bad thing, as are all patents or copyrights on "concepts" or unimplemented "ideas."

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