I have filed a patent. It is a hardware invention, but generally would be implemented in software.
Keep in mind that for a patent to be granted the invention must be:
1) Non-obvious to someone skilled in the art.
2) Novel (ie. not done before).
Patent attorneys and patent offices seem to only use a test for novelty. They tell me that if an invention is obvious, then somebody would have done it before. They have no specific test for non-obviousness apart from demonstrating prior art. They seemingly have no ability to refuse a patent by just claiming that it is obvious. To them, lack of prior art is evidence of non-obviousness.
It is as if they live in another world, where the only inventions and ideas possible are the ones previously patented.
I can only assume that this has come about because a test for non-obviousness is subjective. It's easier for an examiner to let it through and lets the courts sort out the mess later, at our expense.
It seems to me that this is the root cause of ridiculous patents. In technology, we're moving too quickly for this. We need a better solution.
> They tell me that if an invention is obvious, then somebody would have done it before.
So it either already exists, or makes sense to be patented?
This truly boggles the mind.
Then again - does it really? If you are a patent lawyer, your job depends on there being lots of patents. The definition "anything that hasn't been patented should be" seems to be the logical extreme to serve that equation.
The patent office has some curious definitions of originality as well. If you take an existing process and apply it to new technology, that seems to make it novel in their eyes. i was reading through a bunch of digital photography patents a little while ago that don't even pretend originality - they cite 50-year-old patents relating to film photography and literally just add "on a digital camera" or "using a microprocessor" to each claim.
> They tell me that if an invention is obvious, then somebody would have done it before
...and for someone to have done it before, someone must have patented it...
I think that's the real rub of the patent conundrum. The patent office assumes that if something hasn't been patented yet, it must be non-obvious. The whole "skilled in the art" things sort of goes out the window.
Patent attorneys and patent offices should be very different in these views. I'll give a pass to patent attorneys trying to get everything patented, but the patent offices (examiners) should be the gatekeepers. They're the ones that need to apply the test for obviousness.
hey ripb, you are exactly right - innovation is fast-moving and lots of improvements are NEW but obvious (in the sense that any small group of devs with a little bit of time could have done it).
Comments
I have filed a patent. It is a hardware invention, but generally would be implemented in software.
Keep in mind that for a patent to be granted the invention must be:
1) Non-obvious to someone skilled in the art. 2) Novel (ie. not done before).
Patent attorneys and patent offices seem to only use a test for novelty. They tell me that if an invention is obvious, then somebody would have done it before. They have no specific test for non-obviousness apart from demonstrating prior art. They seemingly have no ability to refuse a patent by just claiming that it is obvious. To them, lack of prior art is evidence of non-obviousness.
It is as if they live in another world, where the only inventions and ideas possible are the ones previously patented.
I can only assume that this has come about because a test for non-obviousness is subjective. It's easier for an examiner to let it through and lets the courts sort out the mess later, at our expense.
It seems to me that this is the root cause of ridiculous patents. In technology, we're moving too quickly for this. We need a better solution.
> They tell me that if an invention is obvious, then somebody would have done it before.
So it either already exists, or makes sense to be patented?
This truly boggles the mind.
Then again - does it really? If you are a patent lawyer, your job depends on there being lots of patents. The definition "anything that hasn't been patented should be" seems to be the logical extreme to serve that equation.
The patent office has some curious definitions of originality as well. If you take an existing process and apply it to new technology, that seems to make it novel in their eyes. i was reading through a bunch of digital photography patents a little while ago that don't even pretend originality - they cite 50-year-old patents relating to film photography and literally just add "on a digital camera" or "using a microprocessor" to each claim.
> They tell me that if an invention is obvious, then somebody would have done it before
...and for someone to have done it before, someone must have patented it...
I think that's the real rub of the patent conundrum. The patent office assumes that if something hasn't been patented yet, it must be non-obvious. The whole "skilled in the art" things sort of goes out the window.
Patent attorneys and patent offices should be very different in these views. I'll give a pass to patent attorneys trying to get everything patented, but the patent offices (examiners) should be the gatekeepers. They're the ones that need to apply the test for obviousness.
hey ripb, you are exactly right - innovation is fast-moving and lots of improvements are NEW but obvious (in the sense that any small group of devs with a little bit of time could have done it).