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by Mike Masnick


Filed Under:
ksr, obviousness, patents, spam



Spamming Patent Tossed Out As Obvious

from the is-that-good-or-bad? dept

Slashdot points us to the news that a patent (6,631,400 -- which appears to be incorrectly titled "Statement regarding federally sponsored research or development.") on managing spamming efforts has been tossed out as obvious by the federal circuit, following a similar ruling at the lower level.

What's most interesting here is that while some of the steps were thrown out due to prior art, the final step was tossed out due to "common sense." This is important. For quite some time, the courts seemed to insist that obviousness could only be proven through prior art. But something can be both obvious and new. In fact, the patent law has been clear that patents are supposed to be for things that are both new and non-obvious to those skilled in the art, but the question of obviousness was rarely discussed, as everyone just focused on the "newness." That's finally been changing, in large part due to the Supreme Court's KSR ruling that reminded people that obviousness is important, and that it's separate from newness. Since then, both examiners and the courts seem willing to put a bit more common sense into determining obviousness, and that's absolutely a good thing.

Of course, some of you might feel that having a patent on a spamming technique is a good thing, since it could be used to prevent others from spamming, but that didn't seem to be happening anyway, so let's just be happy that a bad patent has been rejected.

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  • identicon
    Anonymous Coward, 4 Dec 2009 @ 7:10am

    if some1 wants to patent sending spam, i think it should be approved...

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

  • identicon
    Anonymous Coward, 4 Dec 2009 @ 7:27am

    We can only hope that our judicial system will begin to use more common sense.

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

  • icon
    Dark Helmet (profile), 4 Dec 2009 @ 7:44am

    Question:

    Can rulings like this build a backward precedence for existing patents? I mean, if this type of standard was applied retroactively, isn't there a great many patents on the books that could also be tossed out?

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

  • identicon
    Angry Doodie, 4 Dec 2009 @ 8:32pm

    Tech Dirt Lemming Punks

    Punk Punk Little Punk
    Stupid Punky

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

  • identicon
    Anonymous Coward, 5 Dec 2009 @ 2:40pm

    Rulings like this only apply to things that help producers and marketers and industry. Hence it applies to a spamming patent. If it were a patent on something that helps consumers it would simply be ignored by the court before even making it to trial.

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

  • identicon
    staff1, 5 Dec 2009 @ 8:18pm

    obviously

    There is a saying among patent attorneys and others knowledgeable in patents: "every invention is obvious once someone else has done it". You are not a patent attorney and obviously not knowledgeable in patents.

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

    • identicon
      Whatthehellareyoutryingtosay, 6 Dec 2009 @ 11:45am

      Re: obviously

      Are you saying this patent should've been granted? If so, what are your reasons

      Are you implying the court knows nothing about patents?

      "Evidence of Common Sense: The district court held on summary judgment that KSR style "common sense" would lead one of ordinary skill in the art to perform the iterative step (D). On appeal, the Federal Circuit affirmed that finding - holding particularly that the finding of common sense does not require "explication in any reference or expert opinion.""

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


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