Obvious or not obvious?

That is the question.

What "obvious" has been used in the context of not being patentable if it was "[something that] 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."

There are three key components that this would require:
1) What prior art exists in this subject matter
2) What is the difference between this new invention and the prior art
3) The level of ordinary skill in the pertinent art

Prior art that is assessed are usually those that answers the same problem as the new invention. With this in mind, if the new invention can be two prior art's elements combined to be all of the new material, then it is "obvious."

Things that have allowed the "obvious" factor to be waved off includes:
1) The commercial success of the product
2) What unresolved needs are met by the product
3) The failures of prior creation to solve problems that this one can
4) Unexpected results and superiority of the product

In the end unobviousness is a matter of the validity of the creation based on historical products. Although inventions are built upon developed knowledge, it is important that the invention is taking a leap, not just a side scoot. Having the above points to direct what is analyzed to identify that a creation was obvious and what are components that an unobvious product can achieve helps draw black and white lines in the gray area. 

The Constitution's Protection of "Discoveries"

In terms of patentability, three defining components that we discussed in class is that it must be something that is man-made, novel, and not obvious.

In the constitution, Madison awarded Congress the power to protect the growth of innovation by use of intellectual property. The actual clause in the constitution stated:

"[Congress has the power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

What's troubling about this clause is the term "Discovery," which in our every day use refers more of unearthing something rather than creating something new. This goes against almost the two very defining points of man-made and novel. If it is something that someone unsurfaces, that means that it already exists and it could have been something natural rather than a new develop.

In a recent article, Professor Sean O'Connor of University of Washington stated that the word discovery should not be used to define inventions but rather if something new has "a certain degree of importance." To me, this is the unobvious point that we discuss. The point in which an invention is yes a discovery, as in it is utilizing the current resources that we have but perfecting it to a new creation. The unobvious point is to develop something of "importance" that significantly is created on the reliance of the discovery that the person achieve rather than something that any industry expert can innately recognize.

This point is very important to clarify. Yet at the same putting the definition of obvious in a structured language is a difficult task in itself.



http://patentlyo.com/patent/2014/03/constitution-mean-discoveries.html

Revealed Information Between Apple and Nokia Due to Battle with Samsung (Foss Patents)

Apple has recently posted publicly the disclosed information of its initially confidential patent agreement with Nokia. This sudden turn of events comes on the heels of its constant battle against Samsung.

Earlier this year, Samsung presented the issue of the confidential agreement to the court to sway the court to recognize the misconduct of public knowledge of the information that Apple has created. The motivation for this act is that with the information of the agreement going public, it could cause the court to reduce the fees imposed on Quinn Emanuel. Quinn Emanuel was ordered to be responsible to pay for the cost of disclosing information regarding Apple and Nokia's agreements. Therefore this cost should be greatly reduced if the information has already been neglected in public's hand by Apple in the first place.

This is not the first time the inadvertent public filing of Apple's licensing terms has occurred. The terms with Nokia and NEC and at least two other instances of confidential business information it had with Samsung and Google was also publicly filed.

To me, this blatant neglect from both Apple and Samsung should be met with consequences. It is surprising that Nokia isn't the player that is more aggressive about the fault of the two parties but rather the two parties trying to find fault in each other's conduct



Original Article

Groundbreaking Inventions Changes Patent Format (Patently-O)

The article I read this week goes hand in hand with what we are learning in class. This week we have been looking at how patents are written. Most specifically their format, language, and conciseness.

The article addresses that the court added to a statute that allows missing elements in specifications as long as skilled artisan reading the patents can fill the gaps without experimentation. They termed it as the "wand factors" which includes:

1. The quantity of experimentation necessary,
2. The amount of direction or guidance presented,
3. The presence or absence of working examples,
4. The nature of the invention,
5. The state of the prior art,
6. The relative skill of those in the art,
7. The predictability or unpredictability of the art, and
8. The breadth of the claims.

What is difficult about these wand factors is that the gaps that needs to be filled are much more difficult to be met when an invention is beyond conventional wisdom and more disrupting than the obvious current products. This means that more groundbreaking patents must be more specific so that it would not be rejected due to a reader's inability to understand the work.



Original Article

TruePosition acquires Skyhook: Implications for Google (Foss Patents)

For three years, Skyhook has been battling with Google over multiple location-positioning patents. With the acquisition of Skyhook by TruePosition, the opposition to Google will now be a more "well-heeled" opponent with more resources to afford the long litigation timeline and possible issue escalation (international scale).

The point that the article emphasize is it is a matter of if, not a when, that the trial will take place. There has been speculations that TruePosition would be more willing to settle the matter. Yet, that would be illogical because the acquisition of Skyhook is mainly for its IP. For the company to flaunt the matter in a PR release then to settle a case without benefiting from royalties would not make sense. Therefore, to not devalue the portfolio that it just acquired a push for a trial with a push to win is most likely in the cards.

I think it is interesting that TruePosition decided to follow through with the acquisition even though Skyhook is in the middle of the dispute with Google. From my experience in working in mergers and acquisition transactions, when a large dispute is identified in due diligence, it is more likely that the transaction will not take place. The reason being that it would be very risky for the buyer to gamble on the dispute. For if it is a loss the negative PR will label the transaction as one that is not beneficial for the company.


Article on Foss Patents

Patent Reform (Patently-O)

Another article by Dennis Crouch - displaying a graphic on action steps to combat Patent Trolls.

The graphic is derived on the topic of the Obama Administration's goals to promote innovation, research, and developing from inventors rather than being tied up in litigation.

Actions that the administration has conducted thus far includes:

1. Launching a website that allows patent troll victims easier access to getting their questions answered and learning to respond to demand letters.
2. Creating more transparency to enable faster identification of abusive litigation.
3. Holding a higher standard for higher quality patent in order to prevent overly broad claims.
4. Conducting research among different stakeholders to understand the root causes of patent trolls.

Future actions that the administration hopes to implement are:

1. Utilizing crowdsourcing so that inventors know if their creation is a novel product earlier on in the process.
2. Increasing training for patent examiners, especially with the exponentially advancing technological field.
3. Investing in pro-bono legal help for small businesses and inventors who lack legal resources.

Ultimately, the plan of action are targeted across the board in order to ensure success. Yet, there has been no reports on the actual impact of these plans so far. It is important for the government to try to quantify the actual results these plans are delivering in order to understand where the focus should continue to be.

Original Article on Patently-O