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The novelty bar is low by design. An invention needs at most one difference from prior art to be novel. It can be a small difference. But if a patent relies on

The novelty bar is low by design. An invention needs at most one difference from prior art to be novel. It can be a small difference. But if a patent relies on a small difference for novelty it is likely to be a narrow patent or otherwise easy to design around. Note, non-utility differences, like color or artistic design elements do not count in utility patents. Non-obviousness is harder prove because multiple references can be combined and there is more room for subjective interpretation or argument. Overcoming obviousness rejections is where patent attorneys earn their money. If the filed specification is well-done, obviousness rejections can almost always be overcome at the expense of narrowing the patent claims. Further, patents encourage innovation in at least two ways: The classic view is that they reward inventors by granting them a limited term monopoly in their invention in exchange for public disclosure. Though I think more innovation is spurred by people designing around existing patents. For example, Amazon's old one-click patents didn't stop the e-commerce industry from innovating. Neither did Priceline's patents on reverse on-line auctions. Patents protect how someone does something, not what someone does. Two inventions that do the same thing can be patented, as long as how they do it is different. RSA patents only mattered because people wanted to use RSA's crypto. They didn't stop others from making or patenting different kinds of crypto or getting their own patents on novel extensions to RSA's crypto.

jjoonathan 9y ago
> But if a patent relies on a small difference for novelty it is likely to be a narrow patent or otherwise easy to design around. Sure, if you're an omniscient being aware of every patent in existence and well-funded enough to defend against the people who have "patented the internet" (or what have you).
- abecedarius 9y ago
  Another problem with this: engineers get instructed to for god's sake don't read or discuss patents, for fear of treble damages.
  - pnw_hazor 9y ago
    yeah, that kind of sucks. Though not only does such a policy reduce the likelihood of a bad outcome re willful infringement. It can save $$$ during litigation because it will not be a real issue. Businesses deal with all kinds of inconvenient things. Patents are one of those things. Welcome to the big leagues so-to speak. Having a tight 10-50 patent portfolio around your key tech will go along way towards helping a small company play with the big boys. A quality patent portfolio can be a powerful equalizer if you are doing something innovative and it is protected by patents.
abecedarius 9y ago
This is just one more anecdote, but I once read Sun had a cool new patent, the central idea of which turned out to be three lines of assembly code which had already been published in the well-known superoptimizer paper by Massalin 15 years before -- I only noticed this because I happened to have been reading it and had the paper lying around my bedroom. To Massalin it merited one paragraph in an appendix about interesting snippets discovered by the superoptimizer. Sun gave it pages of legalese broken out into multiple claims, ending with the usual boilerplate claiming any further variations not explicitly listed that would be obvious to one "skilled in the art". I did nothing about this because the fight would be a drag with nothing in it for me. Yes, the classic justification is to encourage invention, but there are publications arguing that patents aren't a net positive. It's not my field, I don't know, but I've started doubting. Added: I don't think Sun did anything especially wrong -- they worked with the patent system as it is and missed the prior art. What I think is that this example shows some of what's wrong with that system.
- pnw_hazor 9y ago
  That was just a mistake that slipped through the system. It would be caught later if the patent was ever asserted against anyone. Sun might have caught it themselves as part of their evaluation process before asserting the patent. Now examiners have better access to all types of references. And, it is easier to search through them. Academic papers, foreign patents, foreign publications, books, website copy, etc, are all fair game. Though examiners seem to prefer to use US Patents/Applications if they can. US patents or published applications make great prior art references because they have a clearly defined priority date and patent prosecutors tend to draft specs to be as inclusive as possible.
  - abecedarius 9y ago
    It's encouraging to hear the situation may be getting better. I brought up my example because it shows a friction-to-innovation ratio that seems way out of proportion and because the missed prior art makes the comparison unusually clear. The academic paper treated the idea as almost a throwaway -- I can imagine it as one of the first things to be dropped on tighter page limits. (By dim memory -- I ran into this over a decade ago.) More usually when a patent gets argued about, the interested parties make the matter harder to follow for the rest of us without the attention to spare. I think most of us, if we're fair-minded, when we read about one of these disputes should go "That sounds like ordinary junk but the law is complicated, the patent is complicated, my opinion about this case won't be worth much unless I spend way more effort than I can justify." Here was a patent that just by chance I could easily judge, which didn't otherwise look different from others I've heard about. (Maybe I could dig up the patent number since I've been harping on it. I'm not sure.) Having lots of friction from many small inventions helps the big established companies more. My own patent, it'd never have occurred to me to patent it -- but it was work for a tiny startup that needed a defense in this system. (I don't think this patent was a bad one as patents go. It got referenced by a VPRI STEPS paper.) A patent system could encourage growth, or it could get mired in a rent-seeking equilibrium. It seems hard to tell which we've got, but I'd bet on the latter if we knew how to settle this. There's also a freedom-of-thought cost, in that independent invention happens all the time, unlike the case with copyright. That is, even an unarguable finding of welfare benefit wouldn't settle the question if patents are right. It'd have to be a substantial benefit to offset the cost to liberty.

jjoonathan 9y ago

> But if a patent relies on a small difference for novelty it is likely to be a narrow patent or otherwise easy to design around. Sure, if you're an omniscient being aware of every patent in existence and well-funded enough to defend against the people who have "patented the internet" (or what have you).

abecedarius 9y ago
Another problem with this: engineers get instructed to for god's sake don't read or discuss patents, for fear of treble damages.
- pnw_hazor 9y ago
  yeah, that kind of sucks. Though not only does such a policy reduce the likelihood of a bad outcome re willful infringement. It can save $$$ during litigation because it will not be a real issue. Businesses deal with all kinds of inconvenient things. Patents are one of those things. Welcome to the big leagues so-to speak. Having a tight 10-50 patent portfolio around your key tech will go along way towards helping a small company play with the big boys. A quality patent portfolio can be a powerful equalizer if you are doing something innovative and it is protected by patents.

abecedarius 9y ago

This is just one more anecdote, but I once read Sun had a cool new patent, the central idea of which turned out to be three lines of assembly code which had already been published in the well-known superoptimizer paper by Massalin 15 years before -- I only noticed this because I happened to have been reading it and had the paper lying around my bedroom. To Massalin it merited one paragraph in an appendix about interesting snippets discovered by the superoptimizer. Sun gave it pages of legalese broken out into multiple claims, ending with the usual boilerplate claiming any further variations not explicitly listed that would be obvious to one "skilled in the art". I did nothing about this because the fight would be a drag with nothing in it for me. Yes, the classic justification is to encourage invention, but there are publications arguing that patents aren't a net positive. It's not my field, I don't know, but I've started doubting. Added: I don't think Sun did anything especially wrong -- they worked with the patent system as it is and missed the prior art. What I think is that this example shows some of what's wrong with that system.

pnw_hazor 9y ago
That was just a mistake that slipped through the system. It would be caught later if the patent was ever asserted against anyone. Sun might have caught it themselves as part of their evaluation process before asserting the patent. Now examiners have better access to all types of references. And, it is easier to search through them. Academic papers, foreign patents, foreign publications, books, website copy, etc, are all fair game. Though examiners seem to prefer to use US Patents/Applications if they can. US patents or published applications make great prior art references because they have a clearly defined priority date and patent prosecutors tend to draft specs to be as inclusive as possible.
- abecedarius 9y ago
  It's encouraging to hear the situation may be getting better. I brought up my example because it shows a friction-to-innovation ratio that seems way out of proportion and because the missed prior art makes the comparison unusually clear. The academic paper treated the idea as almost a throwaway -- I can imagine it as one of the first things to be dropped on tighter page limits. (By dim memory -- I ran into this over a decade ago.) More usually when a patent gets argued about, the interested parties make the matter harder to follow for the rest of us without the attention to spare. I think most of us, if we're fair-minded, when we read about one of these disputes should go "That sounds like ordinary junk but the law is complicated, the patent is complicated, my opinion about this case won't be worth much unless I spend way more effort than I can justify." Here was a patent that just by chance I could easily judge, which didn't otherwise look different from others I've heard about. (Maybe I could dig up the patent number since I've been harping on it. I'm not sure.) Having lots of friction from many small inventions helps the big established companies more. My own patent, it'd never have occurred to me to patent it -- but it was work for a tiny startup that needed a defense in this system. (I don't think this patent was a bad one as patents go. It got referenced by a VPRI STEPS paper.) A patent system could encourage growth, or it could get mired in a rent-seeking equilibrium. It seems hard to tell which we've got, but I'd bet on the latter if we knew how to settle this. There's also a freedom-of-thought cost, in that independent invention happens all the time, unlike the case with copyright. That is, even an unarguable finding of welfare benefit wouldn't settle the question if patents are right. It'd have to be a substantial benefit to offset the cost to liberty.