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> I believe that in order for a patentee to sue for infringement, they should first have to present objective evidence that their idea is actually nonobvious, a

> I believe that in order for a patentee to sue for infringement, they should first have to present objective evidence that their idea is actually nonobvious, along the lines of the "Graham factors" [0]: commercial success, long-felt but unsolved needs, or failures of others. This triggers one of my pet soapbox issues: The U.S. patent statute requires a patent to be issued to an inventor unless the patent examiner can show that the claimed invention was not new, useful, or nonobvious. True, the inventor must tell the patent office about any prior art of which s/he happens to be aware, but the inventor has zero obligation to do any kind of prior-art search to see what else might have been out there. Contrast that with the Ph.D. degree system, where the burden is on the candidate to do a literature search and convince his/her committee that s/he didn't reinvent the wheel. Another contrast: When a university grants a Ph.D. degree, the result isn't national industrial policy in the form of a statutory monopoly over the claimed subject matter. And another one: Ph.D. degrees require a defense before not just an experienced advisor, but also a committee of people who know at least something about the subject matter. In contrast, patents and their statutory monopolies are typically approved by junior- or mid-level examiners generally either flying solo or (in theory) supervised by one more-experienced examiner. Only if the examiner issues a final rejection will the invention be reviewed by a board of appeals comprising senior examiners.

ScottBurson 8y ago
> Only if the examiner issues a final rejection will the invention be reviewed by a board of appeals comprising senior examiners. Yes, that's quite backwards, isn't it? Granted patents should be reviewed more carefully than rejections. Where the PhD system is built to minimize false positives, the patent system is built to minimize false negatives. Here's how I've seen it put in the past. A patent is a deal the public makes with an inventor: the inventor gets a temporary monopoly in exchange for disclosing how the invention works. The problem we have is that no one in the system — neither the PTO nor the courts — is specifically responsible for representing the public's interest, by making sure that the information being disclosed is valuable enough to deserve the monopoly.
- dctoedt 8y ago
  > no one in the system — neither the PTO nor the courts — is specifically responsible for representing the public's interest, by making sure that the information being disclosed is valuable enough to deserve the monopoly. By law, that's the job of the USPTO. The PTO routinely rejects patent applications if the examiner thinks that the claimed subject matter wasn't novel or would have been obvious at the time the invention was made. Most rejections stick (I would guess), but sometimes examiners get worn down by patent attorneys. The problem was famously summarized nearly a century ago by the legendary federal judge Learned Hand, who said that "... the antlike persistency of solicitors has overcome, and I suppose will continue to overcome, the patience of examiners, and there is apparently always but one outcome." [0] [0] Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924) (L. Hand, J.), at https://scholar.google.com/scholar_case?case=9696597566965196877 https://scholar.google.com/scholar_case?case=969659756696519... , rev'd on other grounds, 10 F. 2d 30 (2d Cir. 1926).

ScottBurson 8y ago

> Only if the examiner issues a final rejection will the invention be reviewed by a board of appeals comprising senior examiners. Yes, that's quite backwards, isn't it? Granted patents should be reviewed more carefully than rejections. Where the PhD system is built to minimize false positives, the patent system is built to minimize false negatives. Here's how I've seen it put in the past. A patent is a deal the public makes with an inventor: the inventor gets a temporary monopoly in exchange for disclosing how the invention works. The problem we have is that no one in the system — neither the PTO nor the courts — is specifically responsible for representing the public's interest, by making sure that the information being disclosed is valuable enough to deserve the monopoly.

dctoedt 8y ago
> no one in the system — neither the PTO nor the courts — is specifically responsible for representing the public's interest, by making sure that the information being disclosed is valuable enough to deserve the monopoly. By law, that's the job of the USPTO. The PTO routinely rejects patent applications if the examiner thinks that the claimed subject matter wasn't novel or would have been obvious at the time the invention was made. Most rejections stick (I would guess), but sometimes examiners get worn down by patent attorneys. The problem was famously summarized nearly a century ago by the legendary federal judge Learned Hand, who said that "... the antlike persistency of solicitors has overcome, and I suppose will continue to overcome, the patience of examiners, and there is apparently always but one outcome." [0] [0] Lyon v. Boh, 1 F.2d 48, 50 (S.D.N.Y.1924) (L. Hand, J.), at https://scholar.google.com/scholar_case?case=9696597566965196877 https://scholar.google.com/scholar_case?case=969659756696519... , rev'd on other grounds, 10 F. 2d 30 (2d Cir. 1926).