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> If a challenger has to rely on an absence of Graham factors they are in trouble. Right. I think the law should be changed. The Amazon photography patent [0
by ScottBurson 9y ago
> If a challenger has to rely on an absence of Graham factors they are in trouble.
Right. I think the law should be changed.
The Amazon photography patent [0] is a great example of why. Although there were no prior art references specifying the distance ratio given in claim 3, there is also no evidence that nobody had used that ratio before. Nor, in all likelihood, is there any evidence that anyone had tried to achieve the same effect as this patent (eliminating the need for retouching product photographs) and failed.
Although this example is not from the software domain, from what I have seen, similar circumstances occur all the time in software: a patent application covers a technique that simply can't be known not to have already been discovered, because the problem it solves is simply not important enough that someone who solved it would necessarily have thought the solution worth patenting. Or, because they did so at a time when software was not generally thought to be patent-eligible, a situation that, as I recall, persisted among software engineers well into the 1990s.
In my view, and in the software domain, the inventions that deserve patent protection are primarily those that solve problems whose difficulty has been explicitly noted in the computer science literature. For those, we have very clear evidence that any solution that improves on previous attempts is nonobvious. Absent such evidence I think the public would be better served, on the whole, if software patents were not granted.
This is not quite the scorched-earth view that some here on HN take with regard to software patents, referring to those who think they should never be granted at all, but my impression is that it's pretty close to the EU policy.
[0] https://arstechnica.com/tech-policy/2014/06/how-amazon-got-a-patent-on-white-background-photography/ https://arstechnica.com/tech-policy/2014/06/how-amazon-got-a...