Why A Real Obviousness Test For Patents Would Save A Lot Of Wasted Effort

from the digging-deep-for-prior-art dept

We've been among those pushing for a real test for patent obviousness, rather than just accepting "prior art." The law is clear that patents are supposed to be both new and non-obvious to a skilled practitioner. Prior art only covers the "new" part -- not the obvious part. However, patent lawyers have somehow turned the law around so that there is no obviousness test other than whether any prior art exists. To see why this is silly, take a look at the effort a group like the EFF needs to go through to continue their ongoing project of busting bad patents. Rather than being able to challenge a couple of truly obvious patents on that claim, they need to go hunting for prior art in order to bust the patents. Just because there is no prior art, it doesn't mean an idea is non-obvious. It might just mean that the timing wasn't right yet, or some other component or variable wasn't ready yet. In the two patents the EFF is asking for help on, both seem like obvious extensions of very simple ideas, where the potential for missing prior art has more to do with the speed with which the internet developed, rather than any big innovative breakthrough by the patent holders.

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  1. icon
    Mike (profile), 15 Nov 2006 @ 10:38pm

    Re: A Real Obviousness Test?

    Would this test be more to your liking, Mike? I wouldn't state it so loftily, but I do think the current non-obviousness bar needs to be raised.

    No, I don't believe the "flash of genius" test is meaningful here. The test is clearly laid out: "non-obvious" to those who skilled in the art. So, you get comments from multiple people who are skilled in the art and see if they can make a convincing case of non-obviousness. Not saying to just trust them, but have them explain why it's non-obvious. If they're convincing then it's failed the test.

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