[SATLUG] Patents

[Bruce Dubbs]

I'm a little surprised that no one has brought up the topic of patents
today or yesterday.  For those that don't know, there was a *huge*
decision by the Supreme Court yesterday that has tremendous impact of
software and "business methods".

The decision was "KSR INTERNATIONAL CO., PETITIONER v. TELEFLEX INC. Et
Al." and had to do with pedals that adjust in autos.  The court
basically said in a unanimous opinion that "obvious" things can't be
patented.

http://www.supremecourtus.gov/opinions/06pdf/04-1350.pdf

Well that should be obvious too, but the patent appeals court had broken
the system about 18 years ago and it is finally getting fixed in a fit
of common sense.

Some of my favorite quotes:

"The obviousness analysis cannot be confined by a formalistic conception
of the words teaching, suggestion, and motivation, or by overemphasis on
the importance of published articles and the explicit content of issued
patents."

"One of the ways in which a patent’s subject matter can be proved
obvious is by noting that there existed at the time of invention a known
problem for which there was an obvious solution encompassed by the
patent’s claims."

  -- Well Duh.

"For over a half century, the Court has held that a 'patent for a
combination which only unites old elements with no change in their
respective functions . . . obviously withdraws what is already known
into the field of its monopoly and diminishes the resources available to
skillful men.'  This is a principal reason for declining to allow
patents for what is obvious."

"When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a
predictable variation, §103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and a person
of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless
its actual application is beyond his or her skill."

"As our precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ."

"Granting patent protection to advances that would occur in the ordinary
course without real innovation retards progress and may, in the case of
patents combining previously known elements, deprive prior inventions of
their value or utility."

"Common sense teaches, however, that familiar items may have obvious
uses beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle."

"When there is a design need or market pressure to solve a problem and
there are a finite number of identified, predictable solutions, a person
of ordinary skill has good reason to pursue the known options within his
or her technical grasp. If this leads to the anticipated success, it is
likely the product not of innovation but of ordinary skill and common
sense. In that instance the fact that a combination was obvious to try
might show that it was obvious under §103."

"We build and create by bringing to the tangible and palpable reality
around us new works based on instinct, simple logic, ordinary
inferences, extraordinary ideas, and sometimes even genius. These
advances, once part of our shared knowledge, define a new threshold from
which innovation starts once more. And as progress beginning from higher
levels of achievement is expected in the normal course, the results of
ordinary innovation are not the subject of exclusive rights under the
patent laws. Were it otherwise patents might stifle, rather than
promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8."

Wow.  What a set of statements.  An attack of good judgement.

I think we will see a dramatic slowdown of 'obvious' patents now.  The
Amazon 1-click patent is dead.

  -- Bruce