decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Yeah, right. Try to define "obvious" | 98 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Yeah, right. Try to define "obvious"
Authored by: Anonymous on Wednesday, October 17 2012 @ 12:38 AM EDT
I doubt PJ will reply. Patent law is crazy even to other
lawyers, but the real problem here is that the law is just
plain vague. Here's a good summary:

http://www.uspto.gov/patents/resources/general_info_concerni
ng_patents.jsp#heading-5

"Even if the subject matter sought to be patented is not
exactly shown by the prior art, and involves one or more
differences over the most nearly similar thing already
known, a patent may still be refused if the differences
would be obvious. The subject matter sought to be patented
must be sufficiently different from what has been used or
described before that it may be said to be nonobvious to a
person having ordinary skill in the area of technology
related to the invention. For example, the substitution of
one color for another, or changes in size, are ordinarily
not patentable."

Or in the exact words of the statute,
http://www.law.cornell.edu/uscode/text/35/103,
" A patent may not be obtained... if the differences between
the subject matter sought to be patented and the prior art
are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person
having ordinary skill in the art to which said subject
matter pertains." [followed by a bunch of exceptions which
I'll ignore.]

So, you imagine a "person having ordinary skill in the art",
and ask yourself what would be obvious to this hypothetical
person. The courts have identified some "factors" to
consider as evidence of what would be obvious to such a
person, but it's still pretty vague.

Here are the regulations the USPTO uses to try to implement
the law:
http://www.uspto.gov/web/offices/pac/mpep/s2141.html#sect214
1

The problem is that no matter what the standards are
supposed to be, the USPTO is understaffed and will grant the
patent. Then, at trial, the burden of proving obviousness
is on the accused infringer.

[ Reply to This | Parent | # ]

  • Vague. I like that word - Authored by: Anonymous on Wednesday, October 17 2012 @ 08:15 AM EDT
  • Yeah, right. - Authored by: Anonymous on Wednesday, October 17 2012 @ 02:07 PM EDT
Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )