Legal Issues

by Mike Masnick

UK Patent Office Considers Its Own Obviousness Test

from the not-a-bad-thing dept

Here in the US the Supreme Court is still thinking about the US Patent Office's "obviousness" test for patents. Over in the UK, it sounds like folks are considering a similar issue -- though, rather than the courts, it's actually the UK Patent Office itself, wondering if it should use an "inventive step" test, which seems to be quite similar to the "obviousness" test that is being talked about in the US. The Patent Office asked for feedback on the idea and got a range of comments, with most of them seeking a "middle ground." The problem is that a middle ground doesn't really make sense here. The entire point of the patent system is to put in place incentives for innovation. The problem with letting otherwise obvious ideas through is that it clearly hinders that purpose. It hands a monopoly on an idea that others were working on to whoever happens to file the patent first. That doesn't promote progress -- it impedes it by making it harder for anyone else to compete. If the patent system was supposed to be a welfare system or a reward system, that's a different story -- but it wasn't intended for that purpose and there's no economic reason why it should be. If it's only intended to put in place incentives for people to come up with ideas that go beyond the obvious, then obvious ideas shouldn't be rewarded with a monopoly.

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  • identicon
    Enrico Suarve, 13 Feb 2007 @ 3:36am

    Just for clarity

    The UK already have the "inventiveness test" - since 1977

    The paper they published and subsequent responses (all 26 of them!) were just to see if industries and involved parties were happy with the way it is being enforced and how consistently

    The conclusions of the excercise were summarised:

    These conclusions follow directly from responses to the public consultation exercise
    and are fully consistent with recommendations made by the Gowers review. Followup
    actions indicated will be undertaken during 2007.
    1. There is no need for any change to the basic law as it relates to inventive step.
    2. There is a possible problem in the consistency of application of the inventive step
    test in high technology fields, and work will be carried out to investigate this further.
    3. Continuing professional development for examining staff at the Patent Office will
    emphasise the need to maintain technological knowledge up to date, and to
    continually refine searching skills. This echoes recommendations made by the
    Gowers review.
    4. Use of the facility to make third party observations on patentability under s.21 of
    the Act will be encouraged, such efforts already being in line with the
    recommendations of the Gowers review.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2007 @ 5:07am

    Hey Mike,

    It's good to see that it appears you are no longer against the "monopoly" thing of patents as long as its for a non-obvious idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Shohat, 13 Feb 2007 @ 5:58am

    Problems with current Patent - Decades without inn

    Currently , most "inventions" are progress, development , not innovation . The current state cannot be compared at all to the massive amount of innovation that came in the beginning of the last century. 1870-1950 gave us alot , and there haven't been much major breakthroughs since .
    So the Patent system must be rethought , as it was built to handle innovations - such as Radio , Electricity grids , combustion engines , Telephones ,Television, Flight innovations ...
    While we have taken these things far beyond their initial applications , there is nothing incomprehencable or revolutionary advanced in our time .
    So due to the major slowing in true innovation in recent years ,and acceleration of linear progress , the Patent system should grant different kind of protection and rights to different kind of innovators .

    My 2c

    reply to this | link to this | view in chronology ]

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