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personal accountabilitypersonal accountabilityPosted Nov 11, 2011 12:11 UTC (Fri) by michaeljt (subscriber, #39183)In reply to: personal accountability by ekj Parent article: Xiph.org's "Monty" on codecs and patents
> It's really tricky to argue that the patent-office saw the patent as valid, yet that anyone else who *also* sees it as valid, are acting with criminal neglect and/or malevolence.
How much are the (US) patent office expected to know about the current state of the art? Given the number of applications relative to the number of examiners, they would have to be sufficiently familiar with every field they deal with to have an idea off the top of their head about whether or not it is original if they are to spot prior art without help. Is this really what courts assume about them?
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personal accountability Posted Nov 11, 2011 12:48 UTC (Fri) by ekj (guest, #1524) [Link]
They're supposed to be quite competent in the fields where they evalutate patent-applications.
They'd have to be, afterall, because the chief criteria are first that it's novel, and second that it's non-obvious. The definition of the latter vary somewhat by jurisdiction, but for USA it means that:
"the difference 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 to a person having ordinary skill in the art to which the subject matter pertains."
In other words, if the technique being patented would have been obvious to a person who has knowledge of formerly used techniques *and* ordinary skill in the subject-area, then that technique is not patentable.
That's what the law says - offcourse in practice it doesn't work like that. It *is* obvious to a person of ordinary skill in developing payment-solutions for webshops that shopping can be made with one click if the required information has been stored previously - and it's equally obvious how to implement this. Nevertheless the patent was granted.
A patent-examiner, in principle, has examined the application and determined that it is novel, non-obvious and useful. It's gonna be really tricky to make it stick that believing his conclusions amounts to criminal neglect.
If you *could* make it stick: "Nobody in their right mind could believe this", then you could conceivably also sue the patent-office for criminal neglect, since they'd be guilty of the same mistake.
That'd be the day -- but I ain't holding my breath.
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