The U.S. Supreme Court on Monday loosened a legal test that many feel has resulted in a boom of obvious patents that have threatened the software industry.
Federal law states that a patent cannot be granted for an invention that a person of “ordinary skill” in the same field could have created. But since many things become obvious in hindsight, in 1982 the Federal Court of Appeals added a legal test stating that “teaching, suggestion or motivation” must also exist that could lead an ordinary person to develop the invention. This requires prior written documentation that is often difficult or impossible to find, and as a result, no obviousness case has ever been brought before the Supreme Court.
Wild West of Patents
With a green light to patent just about anything, the number of software patents has skyrocketed tenfold since 1990 to over 40,000 software patents approved in 2006 alone. Many of these patents were granted for technology that was, well, patently obvious or overly broad, including Amazon.com’s infamous patent on one-click shopping.
Such wide-sweeping patents make it difficult for companies to innovate, when during the course of normal development, their engineers use these obvious technologies in their own products. Such infringement is often unintentional, given the complex language, large quantity and wide breadth of software patents.
And patent owners lately have been quick to sue, winning some monstrous judgements including Eolas’ $521 million haul against Microsoft for using browser plug-ins. That particular patent was so broad that it could threaten just about any web software that accesses a server for additional content, including Flash and streaming video. These large public judgements have made software patents a big business unto itself, resulting in a number of small patent-troll companies that exist solely to litigate and license their way to a quick payday.
Divided on Court Decision
Technology companies such as Cisco and Intel were quick to praise the Supreme Court’s decision. “There will be a better opportunity for examiners to weed out patents or applications that are not worthy of getting patents, and it will go a long way toward re-establishing patent quality,” said Emery Simon, counselor to the Business Software Alliance, whose members include Adobe, Cisco and Microsoft.
Others were concerned that the decision will add uncertainty to the already confusing and controversial patent system. “I think it’s very fair to say that it’s going to be harder, more costly and more time-consuming for inventors to obtain U.S. patents in all areas of technology, and particularly in areas with predictable art, as we call them, such as mechanical inventions and software and methods of doing business,” Robert Greene Sterne, founding director of the patent law firm Sterne Kessler Goldstein & Fox.
As both a patent holder and small-business software developer that must navigate the minefield of software patents, I have a first-hand view of both sides of this argument and will share my thoughts on this subject in a future article.
Article published on May 1, 2007
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May 2nd, 2007 at 9:50 am
This ruling had an immediate effect. Just one day later, Internet-phone provider Vonage asked the U.S. Federal Appeals Court to put its pending appeals process on hold and send its patent dispute case with Verizon back to the lower court for a new trial.
Vonage interim CEO Jeffrey Citron said the Supreme Court’s decision would have “positive implications” for his company’s legal fight. Vonage chief legal officer Sharon O’Leary said, “According to the Supreme Court’s ruling, if you patent an orange picker, and then someone else comes along and puts a glove on it to protect the oranges against bruising, you can’t patent this new invention as ‘novel’ as it is just an obvious improvement of the original invention. The Supreme Court’s decision thus focuses on keeping only what’s truly novel and original protected by patents.”
May 8th, 2007 at 9:09 am
eWeek has done a good job explaining the Supreme Court ruling in everyday language:
“Some things just go together, like bread and butter or bacon and eggs or peanut butter and jelly. Everyone understands this because it’s obvious. Now say you make some small change to these pairings. For example, bacon and eggs served on a square plate or almond butter and strawberry jelly or toasted bread with a non-dairy butter substitute. Are these radical new changes? Nope, these are also obvious and chances are the same ideas have already occurred to thousands of people.
“But in the bizarre world of patents, these kinds of ideas have traditionally been looked at as innovative and worthy of the full protection and monopoly powers that a patent entails. Looking through many technology patents today it isn’t hard to find ones that are basically a variation of a well-known idea but on the Web, or a well-known technology but using wireless. While ideas like this have traditionally been able to sail through the patent system and then be used to stifle competition and true innovation, they aren’t any more inventive than bacon and eggs on a square plate.”
http://www.eweek.com/article2/0,1759,2124994,00.asp
August 9th, 2007 at 4:29 am
I saw your information at https://www.devtopics.com/supreme-court-improves-patent-law/. Have you seen http://www.FreePatentsOnline.com ? The site might be a good resource to add. This site allows free patent searching, free PDF downloading, free alerts, and more. It is a good resource for intellectual property attorneys, patent searchers, scientists, and students.
June 25th, 2009 at 6:51 am
Hi there,
I found your blogpost very interesting.i am Nick Robinson,a community member at http://www.patents.com Will like to talk (through email) to you,is this the right time to talk about or should we talk during weekends ?
Best-Regards,
Nick Robinson
nickrbson@gmail.com