Tuesday, July 11, 2006

Obviously Unpatentable

How non-obvious should something be in order for it to be patented? Can you patent someone clicking a button to buy something on the Web? Can you patent keeping score in a game?

Most would say not, but so far the USPTO has disagreed. Some fairly "obvious" patents have made their way through the courts, such as alternate ways of swinging on a swingset. The current methodology appears to be "grant every patent, cull the fee, if someone wants to litigate grant a review, cull the fee, then make motions to remove it if need be, whilst culling the fee."

I know, I know, I've lectured on this verbosely before, but it's something that can completely screw over a small business that happens to out-innovate companies with in-house counsel. That's why I found it interesting that the Supreme Court is hearing KSR International Co. v. Teleflex, Inc., et al. As several sites (news.com for one) have noted, this is a case on how "obvious" a patent should be. Specifically this covers KSR's gas pedal technology... but people are already seeing an immediate connection to technology.

With common law like this in the books, small business would still... aw, who am I kidding... they would still get smashed like grapes. But at least officeless companies that simply go on a USPTO filing spree can be knocked around by those with the resources to do so. Perhaps this will provide some with the means to overturn the blatantly obvious (and littered with prior art) patents currently on file.

Take a look at who has filed amicus briefs already. Hmmmmm.....

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