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Xenophon · 03-18-2009, 10:26 AM

A few comments on patents...

First, the standard of 'obviousness' really isn't obvious. That is, the relevant question is not "what is obvious today?" but rather "what was obvious to an average practitioner in that field at the time the patent was filed?" This distinction is very important! Some things are "obvious" only after someone thinks to ask the right question (or the same question viewed a different way) -- the core algorithm in my Ph.D. dissertation springs to mind as an example -- but are forehead-smackingly obvious after someone explains them to you. And these are exactly the things that make the best patents! They tend to be relatively fundamental. Please note -- I'm not claiming that my research would be deeply fundamental! just using it as an example of something innovative that is nevertheless thoroughly obvious after it is explained.

Second, while patent clerks are indeed swamped with new patent requests, that's not the main problem. The big issue is that the patent office is very good at searching for prior art by looking at existing patents, and very bad at looking in the broader scientific (and trade!) literature for prior art. Thus, for example, Adobe once patented "tool selection from a palette" (in the context of a graphics program) -- even though my father had demonstrated exactly that capability in his Ph.D. research more than 20 years earlier. (See this link over at wikipedia for more info.) To Adobe's credit, they immediately abandoned the patent when this was pointed out to them.

Thirdly, the patent office has a very hard time hiring examiners who know software (in particular). This really handicaps their examination of software patents, and especially their determination of what is "obvious." This issue is an ordinary and normal part of the history of every new technology that comes within the purview of the patent system. It happened for VLSI. It happened for Television. It happened for radio. For Aeronautic technologies. For hydraulics (as in cylinders on bulldozers and the like). It happened for steam engines! The history of new technologies shows that there is a 20 to 50 year period of lousy rotten patents that should never have been granted before things settle down to reasonableness. Of course, during that same period there are also lots of patents granted for things that are real inventions that truly deserve protection.

Xenophon

03-18-2009, 10:26 AM	#54
Xenophon curmudgeon Posts: 1,487 Karma: 5748190 Join Date: Jun 2006 Location: Redwood City, CA USA Device: Kobo Aura HD, (ex)nook, (ex)PRS-700, (ex)PRS-500	A few comments on patents... First, the standard of 'obviousness' really isn't obvious. That is, the relevant question is not "what is obvious today?" but rather "what was obvious to an average practitioner in that field at the time the patent was filed?" This distinction is very important! Some things are "obvious" only after someone thinks to ask the right question (or the same question viewed a different way) -- the core algorithm in my Ph.D. dissertation springs to mind as an example -- but are forehead-smackingly obvious after someone explains them to you. And these are exactly the things that make the best patents! They tend to be relatively fundamental. Please note -- I'm not claiming that my research would be deeply fundamental! just using it as an example of something innovative that is nevertheless thoroughly obvious after it is explained. Second, while patent clerks are indeed swamped with new patent requests, that's not the main problem. The big issue is that the patent office is very good at searching for prior art by looking at existing patents, and very bad at looking in the broader scientific (and trade!) literature for prior art. Thus, for example, Adobe once patented "tool selection from a palette" (in the context of a graphics program) -- even though my father had demonstrated exactly that capability in his Ph.D. research more than 20 years earlier. (See this link over at wikipedia for more info.) To Adobe's credit, they immediately abandoned the patent when this was pointed out to them. Thirdly, the patent office has a very hard time hiring examiners who know software (in particular). This really handicaps their examination of software patents, and especially their determination of what is "obvious." This issue is an ordinary and normal part of the history of every new technology that comes within the purview of the patent system. It happened for VLSI. It happened for Television. It happened for radio. For Aeronautic technologies. For hydraulics (as in cylinders on bulldozers and the like). It happened for steam engines! The history of new technologies shows that there is a 20 to 50 year period of lousy rotten patents that should never have been granted before things settle down to reasonableness. Of course, during that same period there are also lots of patents granted for things that are real inventions that truly deserve protection. Xenophon