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.

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    Joe Smith, 15 Nov 2006 @ 6:18pm

    Re: A Real Obviousness Test?

    As the article you reference makes clear the flash of genius test was overturned by Congress although in Graham v. John Deere SCOTUS suggested that they had never really adopted the flash of genius test.

    As a first test, any software patent should be rejected as obvious if it is simply an implementation of something which had previously been done in the physical world.

    For example, I saw a summary of one software patent for the "invention" that when allocating processing jobs among multiple processors you assign a new job to the processor with the shortest waiting queue - that is pretty much what I do when I go the supermarket and decide which checkout line to join.

    It is hard to believe that there was not a physical world equivalent of "Buy it Now" hundreds of years before anyone thought of the Internet. The "quick sale price" concept in art auctions certainly comes close.

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
Techdirt Gear
Shop Now: I Invented Email
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


Email This

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