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"non-obvious" non-obvious"non-obvious" non-obviousPosted May 10, 2005 0:43 UTC (Tue) by roelofs (subscriber, #2599)In reply to: with all due respect by giraffedata 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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"non-obvious" non-obvious Posted May 10, 2005 4:11 UTC (Tue) by giraffedata (subscriber, #1954) [Link] Yeah, that does seem consistent with the patents we see in the news. What I remember is some words from the one patent class I took 15 years ago. I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."On the other hand, lets remember that all the silly patents we hear about are just issued -- I never hear about them actually standing up in court. The patent office may be taking a less-than-legal stance on the obviousness test, biasing itself toward granting patents.
"non-obvious" non-obvious Posted May 10, 2005 15:18 UTC (Tue) by roelofs (subscriber, #2599) [Link] I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."Yes, I think that's more or less the exact statement of law (or whatever) surrounding patentability. But that just pushes the definition question back a step: how do you define "skilled in the art"? That's where the definition I gave comes in--someone who knows everything (that's been published) and can rearrange bits of it to make arbitrary new combinations but who is incapable of any creative insights, no matter how trivial. As poor as this definition sounds, if you think about it, it may be the best you can do--at least it's prescriptive, whereas almost any other definition of "skilled" is wide open to interpretation.
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