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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 unprec

by 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.)

by gojomo 14y ago

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.)