Wednesday, November 29, 2006

Oh yes it is, oh not it's not ...

There is wonderful article on the Patently-O blog, regarding the definition of obviousness in US patent law.

It links through to an article by Mark Smith which provides the following comments on a 1976 case:-

the opinion states that “a patent for a combination which only unites old elements with no change in their respective functions” is obvious. Furthermore, the Court requires the combination to be “synergistic” (resulting in an effect greater than the sum of the several effects taken separately). However, the very next sentence in the opinion says “[T]his patent simply arranges old elements with each performing the same function it had been known to perform, although perhaps producing a more striking result than in previous combinations.”

A ruling which states that combining old (or known) elements together despite producing a more striking result than in previous combinations is not unobvious - that sounds like sense.

I'm a great believer in patents for promoting technological innovation rather than protecting inventors rights.

The key is promoting technological innovation.

This is why :-

1. I'm all in favour of harsh tests for non-obviousness, in fact I'm much more inclined to agree with a demonstratable "flash of genius".

2. With increasing velocity of information and an associated acceleration in discovery (well just look at all those patents!) - I'm also more inclined to agree with a situation where the term of a patent is on a case by case basis with an upper limit. That term to be decided by the length of time in which society could be reasonably expected to independantly discover such a "flash of genius".

3. I don't agree with non-technological innovations being patentable and I do believe in a robust definition of what is technology, on the basis that everything else is excluded.

4. I would agree that patents are redudnant (and therefore should be excluded) where alternative, beneficial and major means of promoting innovation exist (for example open source in software).

5. I would agree that a patent which is not reasonably and meaningfully used in a commercial sense, giving due consideration to the inventor, is not enforceable as it has more to do with protection than promotion i.e trolling.

But then I'm not a patent lawyer. I'm just a great believer in patents as a tool for promoting technological innovation and nothing else.