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:
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
- 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.
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
You bring up a good point. Patent reform should also focus on the judging aspect as well. There needs to be more regulation and standards established when reviewing cases so that "grey area" becomes more clear and straightforward. Much of the obviousness issue is subjective, and with standards created for each industry, there would be less dependence on the individual who is judging and more on definitive guidelines.
ReplyDeleteWhy should a person from a field only look into assessing the obviousness of a patent? I think both experts and non-experts should be considered when determining the validity of a patent for the aspect of obviousness. It should not be obvious to either person. I agree the expert is more important, but establishing that is not obvious to the non-expert is just as important. And, I think this is a very succinct way to define obviousness based on expert testimony as you mentioned. However, how can we define obviousness in a more quantitative way? Is there any way to do this? I think that would be very helpful if some sort of system were developed to assign numerical values and a sort of scoring system.
ReplyDeleteI did a similar blog post and found out the examination guidelines for determining obviousness. http://zouhimaya.blogspot.com/2014/04/examination-guidelines-regarding.html
ReplyDeleteHowever, even with these guidelines, there are still a lot of uncertainties since many doctrines are based on subjective judgments. For example, what's a "simple substitution"? The examiner would be the person who makes the judgment based on his own interpretation on this term.