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My (layman) impression is that the "non-obviousness" requirement is supposed to deal with this problem. But it seems like the patent office is (was?) poorly cal

My (layman) impression is that the "non-obviousness" requirement is supposed to deal with this problem. But it seems like the patent office is (was?) poorly calibrated for obviousness. I'm sure the lawyers writing patents intentionally make it hard on the PTO, but that must be true in every other field too, and I assume the PTO can solve that problem.

akersten 7y ago
Yeah, it's super easy to make even the most mundane thing sound like space-age technology: "a process for systematic analysis of textual corpus to identify and correct erroneous deviations from accepted linguistic norms" - in other words, spell check. We can't rely on overworked examiners to decipher pseudo-technical bullshit to determine if the behavior of a software system is sufficiently non-obvious and specific. The entire concept of a software patent must be forbidden.
- lone_haxx0r 7y ago
  I'll go one step further and say that the whole concept of patents is not only unfair, it's ineffective at what it supposedly tries to achieve (fostering innovation). For every monetary incentive of developing something new, there are 10 obstacles because of patent law. Patents are a hindrance more than an aid.
  - dual_basis 7y ago
    Maybe so, but the alternative effectively means innovation has zero value. Why would I bother researching how to make a new product when I could just copy an existing one? Oh sure, I could tweak a thing here or there to make sure it's not exactly the same, but entire R&D divisions would just be cut from most corporations if the only value to innovating was that you got there first and ended up having (at most) a year before some other company disassembled your product and recreated it, selling it just above cost. Furthermore, if this was common practice, consumers would know that waiting a while would always lead to a knock-off product being available at huge discount, so even during that initial lead time sales would be impacted.
- pnw_hazor 7y ago
  your quoted example is a "what" not a "how" There are probably 100 or 1000s of issued patents related to spell checking -- they can solve same problem as long as how they solve the problem is different.
  - mcbits 7y ago
    What you're calling a "how" can be a list of simple "what"s. > In an electronic word processing system for creating and editing a document, the document comprising a plurality of sentences, a combined spelling and grammar dialog box for displaying both spelling and grammatical errors in one of the plurality of sentences in the document comprising: > a rich text edit command (RTEC) field for displaying both spelling and grammatical errors found within the sentence and editing the sentence; > an error title line for indicating whether the error displayed in the RTEC field is a spelling error or a grammatical error; > a suggestions list box for displaying a suggestions list, the suggestions list comprises a fist plurality of suggestions operative for correcting the spelling error found if the error type displayed in the error title line indicates a spelling error, or the suggestions lists comprises a second plurality of suggestions for correcting the grammatical error found if the error type displayed in the error title lined indicates a grammatical error; > a plurality of common command buttons operative for correcting both errors in the spelling and in the grammatical composition of the sentence displayed in the RTEC field. https://patents.google.com/patent/US6085206A https://patents.google.com/patent/US6085206A In other words: an editable sentence, the description of a spelling or grammatical error, a list of suggestions to fix the error, and some buttons to apply a suggestion, skip, etc. That specific combination of UI elements was perhaps new in 1996 (as were most GUIs), but not what I'd call an "invention" so valuable to society that it deserves 20 years of protection from free market competition. The actual spelling and grammar analysis code might be worthy of protection for a year or two, but they probably lifted most of that from some college kid's paper.
    - pnw_hazor 7y ago
      Sorry to bother you with the late reply. For about 10 years the US had a judge made "flash of genius" standard that was part of determining patentibility. It was eliminated by the US Congress in 1952. I haven't done the research, but I imagine the flash-of-genius standard was repealed because it is impossible to objectively quantify. Current non-obviousness analysis incorporates some things that might be evidence of a flash of genius without going there, such as, market success, unmet need, and so on. But usually non-obviousness is determined if one cannot find subject matter in printed publications that one of ordinary skill in the art could combine to make the claimed invention.
- naniwaduni 7y ago
  You say that as if spell check isn't a Hard Problem...
CobrastanJorji 7y ago
The problem is that so many brilliant inventions are obvious once they've been explained. Because of this, it's very hard to describe what is and isn't obvious. The closest analogue I could imagine would be a test in which your patent includes a problem statement and a solution which solves that problem, and the test for obviousness is to present the problem statement to a group of skilled professionals and see if the solution they craft for that problem statement matches the patent, and strike any claims they propose. This is a very unreliable test and a lousy and expensive standard, but it's the best I've got.
- jammygit 7y ago
  Can’t work if the patented solution has become common knowledge within the profession
  - CobrastanJorji 7y ago
    Drat, that's a good point. The patent office could use the test as part of the review, though.
- pnw_hazor 7y ago
  Patents protect how a problem is solved not what is being solved. Several valid patents can be directed at the same exact problem as long as they solve it using different techniques.
  - CobrastanJorji 7y ago
    Yes, exactly. That mechanism must be non-obvious. My suggestion is that if I pose the problem meant to be solved to a random group of professionals and they quickly come up with the mechanism for solving it that an applicant is attempting to patent, then that mechanism is very likely obvious. Take as an example the "Drinking Bird." Imagine the inventor has applied for a patent. You get some materials engineers and a physicist or something in a room, describe a device which resembles a bird and continuously sips water, and ask them to devise a way to build it in a few hours. If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.
kevin_thibedeau 7y ago
The problem is that they will happily issue patents for <obvious thing>-with-a-computer, then another one for <obvious thing>-over-a-network, then again for <obvious thing>-over-wireless.
mumblemumble 7y ago
> But it seems like the patent office is (was?) poorly calibrated for obviousness. My guess is that it's not necessarily that people at the patent office have a hard time telling if something is obvious, so much as that the incentive structures at play are all wrong. I imagine that, if a patent reviewer denies a patent application, they potentially have a fight on their hands when their decision gets challenged. Whereas, if they approve it, any argument ensuing from that decision will be the court's problem. It's a classic "keep your head down and don't cause any trouble for yourself" situation. Assuming I'm right on that guess, I'd further guess that it's also a classic "I'm not paid enough for this shit" situation. I don't have any friends at USPTO, but I have friends who work in other government offices, and, from what they've said, I would assume that that is a deciding factor in a large percentage of decisions that are being made by rank-and-file government employees across all branches. And I doubt patent clerks are any more likely than any other kind of clerk to be getting paid "dealing with this shit" money.
- monknomo 7y ago
  I worked at the USPTO in the distant past. You're pretty close Obviousness requires a reputable, dated source stating something like "I have combined these two elements" or "Someone should combine these two elements". While magazines or trade literature are acceptable sources, the prior art search is typically conducted primarily through the patent archive. It's a slam dunk if you have two patents with claims that cover the same invention and some way in the text to tie them together. You can't generally rely on your 'expert opinion' that it's obvious because you say so. Patent examiners are also promoted and retained primarily based on the volume of patents they process. IIRC the bar is something like one or two patents processed a day. That would mean 6-8 hours of reading the patent, researching prior art, writing the response, reading the attorney's response and writing your final disposition, as well as any appeals. Regardless of size of patent. All this for mid 5 figures to low six figures in NOVA
  - ngold 7y ago
    Just ripe for abuse by rent seekers and walled garden enthusiasts.
tabtab 7y ago
Re: the patent office is (was?) poorly calibrated for obviousness. Captain Non-Obvious works there.
RaleyField 7y ago
> poorly calibrated for obviousness They should move way to the other side on the scale of obviousness. Patents should be there to protect investments, not to stake out ideas bright and not so bright practitioners can stumble upon. In my opinion only ideas that necessitated a few man-years of work to be discovered should be patentable with onus on inventors to prove nonobviousness. I wouldn't be surprised if only pharma patents would survive only because expensive trials are needed.
gwd 7y ago
I think the real problem is that the patent office gets fees for approving patents, and no negative feedback for approving bad ones. The natural result is that they externalize the cost of disproving bad patents to the population at large. Do the people who approve overturned patents even hear that they've been overturned? If not, then there's not even the emotional cost of being told they've done a bad job. If whenever a patent was overturned, the Patent Office had to pay the court costs of the one who managed to overturn it, they'd be a lot more circumspect about what they approved.

akersten 7y ago

Yeah, it's super easy to make even the most mundane thing sound like space-age technology: "a process for systematic analysis of textual corpus to identify and correct erroneous deviations from accepted linguistic norms" - in other words, spell check. We can't rely on overworked examiners to decipher pseudo-technical bullshit to determine if the behavior of a software system is sufficiently non-obvious and specific. The entire concept of a software patent must be forbidden.

lone_haxx0r 7y ago
I'll go one step further and say that the whole concept of patents is not only unfair, it's ineffective at what it supposedly tries to achieve (fostering innovation). For every monetary incentive of developing something new, there are 10 obstacles because of patent law. Patents are a hindrance more than an aid.
- dual_basis 7y ago
  Maybe so, but the alternative effectively means innovation has zero value. Why would I bother researching how to make a new product when I could just copy an existing one? Oh sure, I could tweak a thing here or there to make sure it's not exactly the same, but entire R&D divisions would just be cut from most corporations if the only value to innovating was that you got there first and ended up having (at most) a year before some other company disassembled your product and recreated it, selling it just above cost. Furthermore, if this was common practice, consumers would know that waiting a while would always lead to a knock-off product being available at huge discount, so even during that initial lead time sales would be impacted.
pnw_hazor 7y ago
your quoted example is a "what" not a "how" There are probably 100 or 1000s of issued patents related to spell checking -- they can solve same problem as long as how they solve the problem is different.
- mcbits 7y ago
  What you're calling a "how" can be a list of simple "what"s. > In an electronic word processing system for creating and editing a document, the document comprising a plurality of sentences, a combined spelling and grammar dialog box for displaying both spelling and grammatical errors in one of the plurality of sentences in the document comprising: > a rich text edit command (RTEC) field for displaying both spelling and grammatical errors found within the sentence and editing the sentence; > an error title line for indicating whether the error displayed in the RTEC field is a spelling error or a grammatical error; > a suggestions list box for displaying a suggestions list, the suggestions list comprises a fist plurality of suggestions operative for correcting the spelling error found if the error type displayed in the error title line indicates a spelling error, or the suggestions lists comprises a second plurality of suggestions for correcting the grammatical error found if the error type displayed in the error title lined indicates a grammatical error; > a plurality of common command buttons operative for correcting both errors in the spelling and in the grammatical composition of the sentence displayed in the RTEC field. https://patents.google.com/patent/US6085206A https://patents.google.com/patent/US6085206A In other words: an editable sentence, the description of a spelling or grammatical error, a list of suggestions to fix the error, and some buttons to apply a suggestion, skip, etc. That specific combination of UI elements was perhaps new in 1996 (as were most GUIs), but not what I'd call an "invention" so valuable to society that it deserves 20 years of protection from free market competition. The actual spelling and grammar analysis code might be worthy of protection for a year or two, but they probably lifted most of that from some college kid's paper.
  - pnw_hazor 7y ago
    Sorry to bother you with the late reply. For about 10 years the US had a judge made "flash of genius" standard that was part of determining patentibility. It was eliminated by the US Congress in 1952. I haven't done the research, but I imagine the flash-of-genius standard was repealed because it is impossible to objectively quantify. Current non-obviousness analysis incorporates some things that might be evidence of a flash of genius without going there, such as, market success, unmet need, and so on. But usually non-obviousness is determined if one cannot find subject matter in printed publications that one of ordinary skill in the art could combine to make the claimed invention.
naniwaduni 7y ago
You say that as if spell check isn't a Hard Problem...

CobrastanJorji 7y ago

The problem is that so many brilliant inventions are obvious once they've been explained. Because of this, it's very hard to describe what is and isn't obvious. The closest analogue I could imagine would be a test in which your patent includes a problem statement and a solution which solves that problem, and the test for obviousness is to present the problem statement to a group of skilled professionals and see if the solution they craft for that problem statement matches the patent, and strike any claims they propose. This is a very unreliable test and a lousy and expensive standard, but it's the best I've got.

jammygit 7y ago
Can’t work if the patented solution has become common knowledge within the profession
- CobrastanJorji 7y ago
  Drat, that's a good point. The patent office could use the test as part of the review, though.
pnw_hazor 7y ago
Patents protect how a problem is solved not what is being solved. Several valid patents can be directed at the same exact problem as long as they solve it using different techniques.
- CobrastanJorji 7y ago
  Yes, exactly. That mechanism must be non-obvious. My suggestion is that if I pose the problem meant to be solved to a random group of professionals and they quickly come up with the mechanism for solving it that an applicant is attempting to patent, then that mechanism is very likely obvious. Take as an example the "Drinking Bird." Imagine the inventor has applied for a patent. You get some materials engineers and a physicist or something in a room, describe a device which resembles a bird and continuously sips water, and ask them to devise a way to build it in a few hours. If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.

kevin_thibedeau 7y ago

The problem is that they will happily issue patents for <obvious thing>-with-a-computer, then another one for <obvious thing>-over-a-network, then again for <obvious thing>-over-wireless.

mumblemumble 7y ago

> But it seems like the patent office is (was?) poorly calibrated for obviousness. My guess is that it's not necessarily that people at the patent office have a hard time telling if something is obvious, so much as that the incentive structures at play are all wrong. I imagine that, if a patent reviewer denies a patent application, they potentially have a fight on their hands when their decision gets challenged. Whereas, if they approve it, any argument ensuing from that decision will be the court's problem. It's a classic "keep your head down and don't cause any trouble for yourself" situation. Assuming I'm right on that guess, I'd further guess that it's also a classic "I'm not paid enough for this shit" situation. I don't have any friends at USPTO, but I have friends who work in other government offices, and, from what they've said, I would assume that that is a deciding factor in a large percentage of decisions that are being made by rank-and-file government employees across all branches. And I doubt patent clerks are any more likely than any other kind of clerk to be getting paid "dealing with this shit" money.

monknomo 7y ago
I worked at the USPTO in the distant past. You're pretty close Obviousness requires a reputable, dated source stating something like "I have combined these two elements" or "Someone should combine these two elements". While magazines or trade literature are acceptable sources, the prior art search is typically conducted primarily through the patent archive. It's a slam dunk if you have two patents with claims that cover the same invention and some way in the text to tie them together. You can't generally rely on your 'expert opinion' that it's obvious because you say so. Patent examiners are also promoted and retained primarily based on the volume of patents they process. IIRC the bar is something like one or two patents processed a day. That would mean 6-8 hours of reading the patent, researching prior art, writing the response, reading the attorney's response and writing your final disposition, as well as any appeals. Regardless of size of patent. All this for mid 5 figures to low six figures in NOVA
- ngold 7y ago
  Just ripe for abuse by rent seekers and walled garden enthusiasts.

tabtab 7y ago

Re: the patent office is (was?) poorly calibrated for obviousness. Captain Non-Obvious works there.

RaleyField 7y ago

> poorly calibrated for obviousness They should move way to the other side on the scale of obviousness. Patents should be there to protect investments, not to stake out ideas bright and not so bright practitioners can stumble upon. In my opinion only ideas that necessitated a few man-years of work to be discovered should be patentable with onus on inventors to prove nonobviousness. I wouldn't be surprised if only pharma patents would survive only because expensive trials are needed.

gwd 7y ago

I think the real problem is that the patent office gets fees for approving patents, and no negative feedback for approving bad ones. The natural result is that they externalize the cost of disproving bad patents to the population at large. Do the people who approve overturned patents even hear that they've been overturned? If not, then there's not even the emotional cost of being told they've done a bad job. If whenever a patent was overturned, the Patent Office had to pay the court costs of the one who managed to overturn it, they'd be a lot more circumspect about what they approved.