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?
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    PATENT PUNK, 16 Jun 2006 @ 12:18pm


    "A patent may be granted for a process, act, or method that is new, useful, and not obvious, for a new use of a known process, machine, or composition of matter or material, as well as for an asexually reproduced distinct and new variety of plant (excluding one propagated from a tuber), and for any new, original, and ornamental design for an article of manufacture."

    This is straight from the USPTO.

    It seems to me that something is clrealy missing and that is scope. What is the scope of any invention?

    If I patent a wire that is bent a certain way and is used to remove hardboiled eggs from boiling water does that include all wires bent in that manner even if they are used to say light pilot lights in gas boilers? Which is more novel an idea the bent wire or a new use for it?

    Do I, as the inventor, have the right to pursue the maker of the wire for pilot lights?

    I am convinced that some of this art is applied to too broad a scope. Patents should be application specific, if it falls in a grey area that is what the USPTO is for. But it seems that the USPTO grants a bent wire patent regardless of application and herein lies the problem.

Add Your Comment

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

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.