How should obviousness be decided?

Late in 2013, there was a court case filed between Soverain v. Newegg to determine whether Newegg had actually violated the intellectual property rights of Soverain. Newegg attempted to argue that Soverain's patent was obvious and therefore not worthy of IP protection. Initially, the jury, in the East District of Texas (where else?) found Newegg guilty of infringement and fined them, but when the company appealed the decision, the Federal Circuit reversed the decision on the basis of obviousness.

All this controversy regarding this court case really brings to light the ridiculous nature of how obviousness is decided. It is clear that there needs to be a better standard for obviousness given that two different court cases came to different conclusions on the issue.

Following Newegg's victory in the Federal Circuit court, Soverain attempted to appeal this case yet again to the Supreme Court. They appealed on the basis that the Federal Circuit court overturning a decision made by a jury subverts the democratic process. According to Soverain, obviousness is not and cannot be determined purely as a question of the law, and therefore must be interpreted by a jury of members of society.

The Seventh Amendment protects the right to a trial by jury, but is this really how we should be deciding issues of obviousness? This brings to light questions of whether or not a jury of common people is qualified to determine whether an invention is obvious or not. If this is a question of law, rather than of crime, then the same protections of a jury trial no longer apply. All of these things must be considered when determining how to figure out what is obvious or not.

Ultimately, there will always be a great deal of difficulty in determining whether an invention is obvious or not. This is necessarily a subjective process, so establishing a standard is something that is extremely hard to do. However, I still hold that a better standard needs to exist in order to more clearly define what an obvious invention is.

Source: http://patentlyo.com/patent/2013/12/supreme-court-the-right-to-a-jury-trial-on-obviousness.html

What constitutes non-obviousness?

In the United States, to be granted a patent, one must prove that their invention is not obvious. How is obviousness defined though? It is defined in Title 35 of the US Code, which reads:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

The code goes into more detail, however, on how this discovery can be deemed new, useful, and especially non-obvious. In order for a patent to be granted, the law determines that a "person having ordinary skill" in the field must not be able to easily come up with the idea or implement it. This standard requires comparison to field experts, which allows for showing non-obviousness through demonstrating that no one else had come up with the idea.

Of course, this still leaves a great deal of gray area. With regards to combining previously known elements, there is still quite a bit of uncertainty on when a patent is considered non-obvious. Often, it changes on a case-by-case basis, which is somewhat of a testament to how broken this system is. There needs to be a better way to evaluate patents which is more objective in determining if an invention is new, unique, and/or useful.

Source:
http://www.law.cornell.edu/uscode/text/35/103
http://www.law.cornell.edu/uscode/text/35/101

Rockstar vs. Google = Texas vs. California

Google has filed a motion to have the Android OEM cases put forth by Rockstar moved to California courts from Texas. Their motives in doing so are quite obvious to anyone who knows about the differences in political opinions between Texas and California. It is unfortunate, however, that these differences in political opinion manifest in overwhelmingly influencing court decisions one way or another. Texas is seen as a haven for the patent holder, whereas California is a market that encourages innovation and is ultimately harsher against patent claimants.

New evidence has come out revealing that Google had knowledge that they might have been violating these patents. This reduces the strength of Google's claim that they assumed the invalidity of these patents. However, if Google can still prove that these Rockstar patents are invalid, then they will not have to pay an increased penalty.

Source: http://www.fosspatents.com/2014/02/nortel-told-google-in-2010-it-infringed.html

The EU: A Patent Troll's Paradise

Patent-trolling is becoming a serious issue that prohibits innovators from being able to exercise their freedom and hurts the free market by preventing competition. The practice of entities, known as Patent Assertion Entities, gobbling up patents just to make money through litigation is a perfect illustration of how broken our current system is.

The legal system should not be exploited as a money-making tool for companies, but sadly, that is what is happening. Even Apple and Samsung, the biggest abusers of patents for profit, have spoken out against patent trolls hurting free market innovation.

For these patent trolls, the European Union has become a safe haven, constantly making decisions in favor of patent holders and ruling against free-market capitalism in order to protect "intellectual property." This is a serious problem because as we have seen before, regional differences in IP enforcement can create problems and inequalities in the law. The Eastern district of Texas is a perfect example of what can go wrong when certain regions are easier on patent litigation.

This is an issue that the EU should act to take care of soon.

Week 4 - Samsung vs. Apple -- Korean style!

The Korean Fair Trade Commission recently ruled in favor of Samsung in yet another round of Samsung-Apple legal clashes over intellectual property rights. Apple took Samsung to court on the basis of violating the Korean Monopoly Regulation and Fair Trade Law. Samsung holds what is known as a Standards-Essential Patent (SEP), which is a patent for a technology that is essential to a widely adopted standard. As such, in order to comply with the standard, one would need to purchase a license from Samsung.

Apple made the complaint that Samsung was using this SEP to exercise monopoly power in the South Korean markets, but the KFTC ultimately found Samsung not guilty of this action. This Korean ruling is probably not in favor of consumers because Samsung truly does dominate using this patent. In fact, this ruling is against the tide of rulings by the US DoJ, the Free Trade Commission, and the EU on the subject of standards essential patents. It will be interesting to see what the repercussions of this ruling are for South Korea's free market, since Samsung will be given even more market control and ability to dominate.

Source: http://www.fosspatents.com/2014/02/korea-fair-trade-commission-clears.html

Week 4 - Germany does it right: Google vs. Microsoft

Just this month in Germany, the Bundespatentgericht, which means Federal Patent Court, ruled on a case between Microsoft and Google. In the case, Microsoft had made a claim of patent infringement against Google's Motorola Mobility and Google Maps, against EP0845124, which was for a "computer system for identifying local resources and method therefore".

The German court found that this patent was invalid, likely on the basis that it is too general and would not be in the interest of preserving competition. There should definitely be multiple companies allowed to create a computer system to identify local resources -- this is an extremely broad function, and not a specific technology, which is what patents should exist to protect. 

Like the American justice system, the system in Germany has its flaws. One such flaw is that when decisions like this are made, companies have the ability to appeal these decisions. This is problematic because as it turns out, in these sorts of cases where a patent is ruled invalid, the decision is overturned more than 40% of the time.

However, it is important to admire the system for being able to rule in a consumer-friendly manner. This is an important lesson, from which Americans can learn.

Source: http://www.fosspatents.com/2014/02/federal-patent-court-of-germany.html