#non-obviousness

[samsi6]

The non-obviousness of moments is obvious...

[patentservices]

Break the word of patentability into two – patent and ability. What do you comprehend from it? One can easily understand that it is the ba...

[fraserharris-blog]

Non-obviousness Should Be The Hardest Patent Barrier

A growing Waterloo start-up, Kik, is being sued by Research In Motion (Blackberry) for violating their patent on instant messages.  RIM has a dubious patent on storing the state of a message: read, unread, replied, etc.  These kinds of actions are resulting in a patent system that is not protecting innovation - it's holding innovation back!  The patent system is weapon by incumbents to be used against rising competition.

Patent eligibility rests on four things: novelty, non-obviousness, utility, and industrial applicability.  This sounds reasonable.  Where did it all go wrong?

There is an important on-going debate about the failures of the patent system.  The US Patent and Trademark Office (USPTO) has allowed a rapidly growing number of baseless 'innovations': business method patents like Amazon's one-click purchases and software patents like Apple's swipe to turn the page.  

The Federal Trade Commission, the US consumer protection and monopoly-busting agency, has weighed in on the failings of the patent system.  Their 300-page report focuses on companies that have no purpose but suing others for patent infringement - "patent trolls".  Many patents are written in obscure ways so that it is very hard to figure out what would be non-infringing.  The FTCs solution is to raise the bar on the explicitness of patents.  I think non-obviousness is the better focus.

Today multiple independent parties are creating the same 'inventions' at the same time.  There have been suggestions that we need an 'independently invented' protection from patents.  Why not recognize that something that is independently invented with ease should have failed the non-obvious test.  The non-obvious test should be raised significantly, and former patents that are viewed in this light should be thrown out.

The difficulty is that patent examiners are often not sufficiently 'skilled in the arts' decide on obviousness.  A model for getting expert participation is the USPTO's Peer to Patent pilot program.  In this program, the public can submit examples of the 'innovation' already existing (known as "prior art").  Could a similar system be used to contribute expert opinions on obviousness?