Patent Ruling Makes Obvious Sense

Some things just go together, like bread and butter or bacon and eggs or peanut butter and jelly. Everyone understands this because its obvious.

Now say you make some small change to these pairings. For example, bacon and eggs served on a square plate or almond butter and strawberry jelly or toasted bread with a non-dairy butter substitute. Are these radical new changes? Nope, these are also obvious and chances are the same ideas have already occurred to thousands of people.

But in the bizarre world of patents, these kinds of ideas have traditionally been looked at as innovative and worthy of the full protection and monopoly powers that a patent entails. Looking through many technology patents today it isnt hard to find ones that are basically a variation of a well-known idea but on the Web, or a well-known technology but using wireless.

And while ideas like this have traditionally been able to sail through the patent system and then be used to stifle competition and true innovation, they arent any more inventive than bacon and eggs on a square plate.

But finally things should start to change. In a recent unanimous ruling, the U.S Supreme Court has changed the rules of the patent game, reversing a previous bad decision and making it much harder for businesses and patent trolls to get a patent for an idea that is clearly obvious.

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In the case, which dealt with a patent for adjustable gas pedals in cars, the Supreme Court said the previous tests for non-obviousness were too weak and easily circumvented by unoriginal ideas. With their ruling they have set a much higher bar for showing that an idea isnt obvious and have made it easier to use prior art to prove the obviousness of an idea.

Even better, rather than sending the case back to a lower court, the Supreme Court ruled on the gas pedal case immediately using their new benchmark for obviousness.

This means that we could start to see the impact of this ruling immediately and that means that the days could be numbered for a lot of the worst patents out there. Because of the nature of the ruling, challenges to weak patents based on obvious ideas can be brought now and with the higher bar for non-obviousness, many of these patents will have a hard time staying valid. We may even finally see the end of the notorious Amazon one-click patent.

Reading through the Supreme Courts decision was a pure joy for someone like myself who has been railing against the negative effects of bad patents for years now.

The decision was chock full of great quotes, with one of my favorites being, "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."

Broad patents threaten to stifle innovation. Click here to read more.

Yes! Its one thing for me to keep saying that bad patents stifle innovation but it is great to see the same sentiment expressed by the U.S. Supreme Court.

And this case, while by far the one with the biggest impact, wasnt the only good news on the patent front from the Supreme Court. The Court also ruled in another case between Microsoft and AT&T, where AT&T was trying to use its United States patents against Microsoft in other countries.

This was another common sense area where you kind of say, duh, if the patent isnt legal in a certain country then you cant use it. In this case, I was glad to see the Court rule in favor of Microsoft and agree that a United States-based patent is just that, and not a global patent no matter what the laws of other countries say.

Of course there is still plenty of bad news in the patent world. While the Supreme Court rulings should stop some of the worst and most obvious patents from getting passed, there will still be plenty of bad patents that get around the system in other and probably new ways.

But for now Ill enjoy the good news. It just seems like the obvious thing to do.

Jim Rapoza can be reached at jim_rapoza@ziffdavis.com.

Click here for an archive of Jim Rapozas columns.

Web Resources:
http://www.supremecourtus.gov/opinions/06pdf/04-1350.pdf
Read the Supreme Court ruling on obviousness in patents.

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1056.pdf
Microsofts arguments in its case against AT&T and U.S patents in other countries.

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