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Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense f

by gojomo 14y ago

Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example: • independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well • allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'

rayiner 14y ago
I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.
- gojomo 14y ago
  I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two. Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order. There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
  - tzs 14y ago
    Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.
    - rayiner 14y ago
      It's possible, but I think in a civil case where the burden of proof is "more (or less) likely than not" I think concurrent invention should create a strong presumption of obviousness.
    - gojomo 14y ago
      In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant. For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches". The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.) Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard. (And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)
- dctoedt 14y ago
  > I think proof of independent invention should at the very least establish a presumption that the invention is not novel. Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1 \1 Brent Yamashita [of DLA Piper], Secondary Considerations of Obviousness in a Patent Case: The Seldom-Used "Simultaneous Invention" Factor, at http://www.patentlyo.com/patent/2008/07/secondary-consi.html http://www.patentlyo.com/patent/2008/07/secondary-consi.html (omissions in original).

by gojomo 14y ago

rayiner 14y ago

I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.

gojomo 14y ago
I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two. Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order. There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
- tzs 14y ago
  Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.
  - rayiner 14y ago
    It's possible, but I think in a civil case where the burden of proof is "more (or less) likely than not" I think concurrent invention should create a strong presumption of obviousness.
  - gojomo 14y ago
    In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant. For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches". The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.) Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard. (And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)
dctoedt 14y ago
> I think proof of independent invention should at the very least establish a presumption that the invention is not novel. Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1 \1 Brent Yamashita [of DLA Piper], Secondary Considerations of Obviousness in a Patent Case: The Seldom-Used "Simultaneous Invention" Factor, at http://www.patentlyo.com/patent/2008/07/secondary-consi.html http://www.patentlyo.com/patent/2008/07/secondary-consi.html (omissions in original).