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How do you do that objectively though? I mean, consider Apple's bouncing lists patent. When you use it, it's very intuitive, and any moderately skilled softwar

by mdkess 14y ago

How do you do that objectively though? I mean, consider Apple's bouncing lists patent. When you use it, it's very intuitive, and any moderately skilled software developer could implement it in an afternoon. So it seems obvious, but the question is then - why did nobody do it before? Touchscreen devices existed previously, so that seems to suggest that it is non-obvious. Synthesizing a drug is not hard or novel, but arriving at the conclusion that this is indeed the correct drug that is the reason that pharma patents exist. So the same could be said of bouncy lists. So how do you determine the obviousness of this, objectively? The most straightforward ways are prior art and to to consider claims from previous patents. It's mostly objective and is hard to argue against, as opposed to one patent examiner's opinion on obviousness. The problem with software patents is that the benefits of a 20 year monopoly far outweighs the benefit of having it released to the public - which is not true for all patents. If Apple couldn't patent the bouncing list, they'd still have bouncing lists, and it would still be an advantage to their devices, even if everyone else copied them. If you couldn't have a patent on a drug that was going to take $1 billion in costs to bring to market, yet would only cost pennies to synthesize, you wouldn't even bother trying. So the question is instead, how do you objectively determine which industries require patent protection, and which don't. For the rest of the industries, copyright and trademark laws are more than enough protection.

tensor 14y ago
Putting aside UI patents, if a patent is "non-obvious" is should not be the case that people routinely run afoul of the patent without the details of it being disclosed. However, this is precisely what is happening in the software industry. In fact, typical legal advice for engineers is to not read patents at all. And still, it is impossible to write any sort of complicated program without running a foul of numerous software patents. A truly innovative patent would be one which would be fairly unlikely to be rediscovered independently. How likely is it that a typical person skilled in the art would have come up with PageRank if the algorithm was not published? Another academic might have, but it would not be likely that an average programmer would. On the other hand, that linked list patent? That is not innovation. The idea of searching multiple databases from a single search box? Not innovative. Searching for and identifying entities like phone numbers in text? Not innovative.
- russell 14y ago
  IBM came up with a ranking system at about the same time that was similar to PageRank, so it seems that even PageRank was obvious.
CamperBob2 14y ago
Touchscreen devices existed previously, so that seems to suggest that it is non-obvious. Usually, these obvious "innovations" are simply a combination of a technology that might or might not have existed before, plus a need or an opportunity that didn't exist before. Bouncing lists are one example; one-click ordering is another. For the list case in particular, Apple needed a touchscreen and a fast CPU, plus a reason to implement it. That combination didn't exist in general-purpose portable consumer devices before the iPhone. We already have a mechanism for rewarding those who recognize opportunities and fill needs: it's called a "market." No additional monopoly protection is appropriate in such cases. When patents are granted on the basis of a foot race to the USPTO, everyone (except the lawyers) loses. Basically, we're rewarding the first people who apply the easiest solutions to problems that few others have even encountered. Instead, we should be limiting the use of patents to cases where a difficult problem has been solved by means that might otherwise be kept locked away as a trade secret.
- ScottBurson 14y ago
  Yes, I think this is the essence of the problem with software patents in particular. The technological landscape is changing so fast that new opportunities -- new problems -- emerge daily. An awful lot of software patents concern solutions to these new problems, but where the solution itself is easily arrived at given the problem. To me, the key problems with the notion of obviousness written into current patent law are that (a) it is mostly subjective and (b) the burden of proof is on the PTO, if the examiner feels the claimed invention is obvious. I think the burden should be on the applicant to provide objective evidence that the solution is not obvious. While I suppose this could take various forms, it is hard to see how any such evidence could exist when the problem addressed by the claimed invention is itself novel. If the problem is not yet widely recognized as a problem, there has been little opportunity for anyone else to try to solve it and fail. To show nonobviousness under my proposal, the applicant would have to show that the problem has been known or at the very least that it has been a problem, even if not identified as such.
  - b1daly 14y ago
    In my reading of the Reddit thread I did not take away that patent examiner just gets to decide that something seems obvious. Instead, the reasoning seems to be that if no prior art for an invention exists, it could therefor not have been obvious. This seems sort of sensible as it is very hard to determine if a truly novel invention is obvious. Hindsight bias being a core part of the problem. So they seem to have moved away from a more metaphysical problem of determining obviousness to just trying to determine if an invention of novel, which at least has some grounding in objective reality.

by mdkess 14y ago

tensor 14y ago

Putting aside UI patents, if a patent is "non-obvious" is should not be the case that people routinely run afoul of the patent without the details of it being disclosed. However, this is precisely what is happening in the software industry. In fact, typical legal advice for engineers is to not read patents at all. And still, it is impossible to write any sort of complicated program without running a foul of numerous software patents. A truly innovative patent would be one which would be fairly unlikely to be rediscovered independently. How likely is it that a typical person skilled in the art would have come up with PageRank if the algorithm was not published? Another academic might have, but it would not be likely that an average programmer would. On the other hand, that linked list patent? That is not innovation. The idea of searching multiple databases from a single search box? Not innovative. Searching for and identifying entities like phone numbers in text? Not innovative.

russell 14y ago
IBM came up with a ranking system at about the same time that was similar to PageRank, so it seems that even PageRank was obvious.

CamperBob2 14y ago

Touchscreen devices existed previously, so that seems to suggest that it is non-obvious. Usually, these obvious "innovations" are simply a combination of a technology that might or might not have existed before, plus a need or an opportunity that didn't exist before. Bouncing lists are one example; one-click ordering is another. For the list case in particular, Apple needed a touchscreen and a fast CPU, plus a reason to implement it. That combination didn't exist in general-purpose portable consumer devices before the iPhone. We already have a mechanism for rewarding those who recognize opportunities and fill needs: it's called a "market." No additional monopoly protection is appropriate in such cases. When patents are granted on the basis of a foot race to the USPTO, everyone (except the lawyers) loses. Basically, we're rewarding the first people who apply the easiest solutions to problems that few others have even encountered. Instead, we should be limiting the use of patents to cases where a difficult problem has been solved by means that might otherwise be kept locked away as a trade secret.

ScottBurson 14y ago
Yes, I think this is the essence of the problem with software patents in particular. The technological landscape is changing so fast that new opportunities -- new problems -- emerge daily. An awful lot of software patents concern solutions to these new problems, but where the solution itself is easily arrived at given the problem. To me, the key problems with the notion of obviousness written into current patent law are that (a) it is mostly subjective and (b) the burden of proof is on the PTO, if the examiner feels the claimed invention is obvious. I think the burden should be on the applicant to provide objective evidence that the solution is not obvious. While I suppose this could take various forms, it is hard to see how any such evidence could exist when the problem addressed by the claimed invention is itself novel. If the problem is not yet widely recognized as a problem, there has been little opportunity for anyone else to try to solve it and fail. To show nonobviousness under my proposal, the applicant would have to show that the problem has been known or at the very least that it has been a problem, even if not identified as such.
- b1daly 14y ago
  In my reading of the Reddit thread I did not take away that patent examiner just gets to decide that something seems obvious. Instead, the reasoning seems to be that if no prior art for an invention exists, it could therefor not have been obvious. This seems sort of sensible as it is very hard to determine if a truly novel invention is obvious. Hindsight bias being a core part of the problem. So they seem to have moved away from a more metaphysical problem of determining obviousness to just trying to determine if an invention of novel, which at least has some grounding in objective reality.