Posted May 10, 2005 0:43 UTC (Tue) by roelofs
In reply to: with all due respect
Parent article: Software, reverse engineering and the law
US patent law requires an invention to be nonobvious to have patent protection. The US patent office seems to be largely ignoring that rule these days, but courts have been sticking to it better. If you can invent something by "applying common sense to [your] profession," it's legally "obvious."
That's not how I understand it from speaking to at least a couple of patent lawyers/attorneys. My understanding is that the "non-obvious" rule is decided on an almost algorithmic basis, one that could be described in terms of an automaton (my terminology). To wit: given as input all patents and publicly disclosed prior art to date, if an automaton could glue various bits together to come up with your "invention," it's obvious. Anything else is non-obvious.
I don't claim that either my memory, my understanding, or that of the folks to whom I spoke is correct, but at least in the latter case, this is what they do professionally, so I tend to believe them. On the other hand, even if everything I've said is fundamentally correct, there's obviously still plenty of room for interpretation on the part of the examiners (as I've found out the hard way on at least one occasion). One can also see a little more easily how a lot of stupid patents have gotten granted over the years.
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