Comment Re:Very narrow ruling (Score 1) 242
I am a patent agent (lawyer soon). The problem with obviousness is that when expressed in general common terms you cannot understand it. What is obvious? And to who? Its a very subjective standard and leads to very inconsistent decisions. Even as the law is now, the decisions are arbitrary if the person doesn't have a thorough view of the law. Everybody likes to jump up and scream its obvious, but have you ever thought at the time it was created, it *wasn't* obvious. Hindsight is 20/20 - so this alone makes the obvious standard really difficult.
With that said, they are not challenging obviousness. They are challenging the motivation-suggestion-teaching requirement of obviousness. Basically, the reference has to motivate/suggest the inventor to combine the references (and both have to be before the date of filing the patent application). And thats a quick 2 second version, its not an easy area of law and a lot of people get confused, including patent attorneys.
The whole area of "obviousness" combines 2 references and says this combined with that teaches each and every element of your invention. It would have been obvious to a person having ordinary skill in the art to combine these two to achieve the result you obtained. Do you see how tricky that is? What does any of that really mean?
Now Cisco and Microsoft have valid points, but the standard as is set now is at least workable. But if you throw out the "motivation" requirement, which was created by the CAFC because the obviousness standard was completely arbitrary in the 80's, then - the whole area of law becomes pretty much arbitrary once again. Its not going to cut down the number of patent applications, all its going to do is cause more appeals and more work for the USPTO.
There are *other* changes that need to be made. For example, make the burden for a patent higher by requiring industrial applicability (as in, capable of being made). Create the utility model patent for simple inventions. Getting rid of business method patents (already worthless because first office action is generally at least 5 years after filing).
With that said, they are not challenging obviousness. They are challenging the motivation-suggestion-teaching requirement of obviousness. Basically, the reference has to motivate/suggest the inventor to combine the references (and both have to be before the date of filing the patent application). And thats a quick 2 second version, its not an easy area of law and a lot of people get confused, including patent attorneys.
The whole area of "obviousness" combines 2 references and says this combined with that teaches each and every element of your invention. It would have been obvious to a person having ordinary skill in the art to combine these two to achieve the result you obtained. Do you see how tricky that is? What does any of that really mean?
Now Cisco and Microsoft have valid points, but the standard as is set now is at least workable. But if you throw out the "motivation" requirement, which was created by the CAFC because the obviousness standard was completely arbitrary in the 80's, then - the whole area of law becomes pretty much arbitrary once again. Its not going to cut down the number of patent applications, all its going to do is cause more appeals and more work for the USPTO.
There are *other* changes that need to be made. For example, make the burden for a patent higher by requiring industrial applicability (as in, capable of being made). Create the utility model patent for simple inventions. Getting rid of business method patents (already worthless because first office action is generally at least 5 years after filing).
