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. identicon
    AJ, 15 Nov 2006 @ 5:45pm

    Hmmm

    I think the "obvious" test would be very important, but I think the problem is so deep, only a complete overhaul of the patent system would fix things. I would like to see a test done, to prove a point. Take a complete obvious patent, word it with some exceptional laywer speak, completely obscure the true idea of the patent with the double talk to the point no one really knows what it is exactly your trying to patent, and see if it is granted.. I bet it does. I've read some of the applications, its a wonder anyone could understand what it is exactly there trying to protect.

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