[SATLUG] Patents

[Sean Crandall]

On 5/4/07, Bruce Dubbs <bruce.dubbs at gmail.com> wrote:
>
> > BUT... if the innovation fundamentally changes the nature of the
> > device...like an optical mouse,  OR a pointing device that is not
> > driven by the hand but by eye movements, or by brain waves... then
> > those new "mice"  are worthy of a patent.
>
> Perhaps.  It depends if the technology is new or not.  If it exists in
> another context, then applying it to a mouse may or may not be obvious.

> > I haven't decided what I think of this particular decision...
> > but I've seen enough protection of big-business by this court not to
> > wonder what precedents  they may be setting in place that may screw
> > over the little guy.
>
> It is not screwing over the little guy.  It is liberating him.  The ones
> who can afford the costs of a patent are the big guys.  They have been
> patenting minor tweaks that are obvious to extend the monopoly
> protection of a patent for a long time.

I mostly just lurk on this list because there are other people on here
much smarter than I (particularly in the context of Linux), but I do
have a couple of things to throw into this discussion.  As to
obviousness, one of the major problems this decision addresses is
so-called "combination" patents.  The simple example is the pencil and
eraser.  Given the existence of a pencil and eraser, is is a
patentable "invention" to attach an eraser to a pencil, assuming it
has never been done before?  The Supreme Court used to say "No,"
because this accomplishes no new or better result.  Both implements do
exactly what they did before---they're just spatially closer to each
other.  Then there was some discussion in the Federal Circuit about
this creating a new criterion for patentability contrary to the
statutory language, and the CAFC abandoned the combination concept for
the "suggestion" test at issue in Teleflex.  This paved the way for
lots of obvious patents, which in turn contributed to the problem of
patent "trolls" (I recently wrote a Law Review comment on this topic
that now has a zero probability of getting published thanks to this
decision).

Whatever your political opinion of this Court, I can opine without
reservation that this was the right thing.  In this case, almost
everybody's interests were aligned.  Bad patents are bad for business,
whether you are Microsoft or Joe's Local Computer Shop (incidentally,
the Court decided another patent case the same day, and Microsoft won
that one, but it was on a totally unrelated issue dealing with exports
and it was against AT&T---Kase, if you're still reading this thread, I
think it was on that speech stuff you used for your Senior Design
project).  The only people who benefit from bad patents are patent
trolls.  This was a huge setback for them.


> Overall, I think we are in much more agreement than disagreement.  The
> patent system was envisioned by the writers of the Constitution as
> something to reward the hard work of developing new processes and
> techniques in a non-trivial manner.  As the Supreme Court said, they did
> this "To promote the progress of science and useful arts".  Allowing
> trivial patents hinders progress rather than promoting it.

I will take issue with one thing that seems like a technicality, but
it is a common and fundamental misunderstanding.  Patents are not
intended to be a retroactive reward.  That would imply that they are
somehow a natural right.  They are a prospective motivation.  We grant
them not because you deserve it naturally, but because there may be
some innovation that you can dream up that we may not get unless we
entice you with a monopoly that would otherwise be very undesirable.
You can be very clever and work really hard, but you still cannot (and
should not) get a patent if what you come up with is something we
already had access to.  That's why a patent can be defeated by
showing, for example, that some guy in Italy published your invention
the day before you invented it in an obscure Italian trade journal
that you've never seen and couldn't read.

-- 
Sean Crandall
Today's Sesame Street was brought to you by the number 'e'.