Non-obviousness (patent)

Non-obviousness (patent) - Factbites
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Topic: Non-obviousness (patent)

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	Definition of Patent
		Patent claims are typically of the form of a long sentence, e.g., " An apparatus for catching mice comprising, a base member for placement on a flat surface, a spring member...
		Patent Office within the State Department and he appointed Dr. William Thornton as its first superintendent in May 1802.
		Generally, the patent laws make it difficult for patent examiners to employ hindsight reasoning in rejecting a claim as obvious, by requiring some teaching that would motivate a person of ordinary skill in the art to modify the technology found in the prior to arrive at the claimed invention.
	www.wordiq.com /definition/Patent

	Why are Software Patents so Trivial?
		Software is an art of abstraction and software patents come as a result of an opening of the patent system toward the abstract and functional, a proliferation of "function claims", i.e.
		Patents will be deemed "good" if the scope of exclusion is felt to be
		Each patent will usually focus on one of these logical steps, thus making this patent trivial and broad, even if the innovation itself was truly ingenuous.
	swpat.ffii.org /analysis/trivial/index.en.html

	Biopiracy
		patenting of biological resources with no respect to patentable criteria (novelty, non-obviousness and usefulness).
		Patents offer this much needed revenue and favour innovation.
		Companies, in particular, are quick to apply for a patent on the collected resource or the new products, so as to prevent competitors from using them.
	www.sciencedaily.com /encyclopedia/biopiracy

	An Industry at Risk
		Patent law should be consistent throughout the world and, if it is to be applicable to software, should extend for much shorter periods of protection than exist now, unified prior art searching capabilities, equal standards of novelty, the elimination of patent rules that allow "patent flooding," and identical standards for prior use restrictions (bar dates).
		Patents and patent laws are so complex that even an ungrounded lawsuit may take a year to resolve, simply because it may be hard to prove quickly that the other side does not have a case.
		Patents are typically targeted at a particular product in a particular industry, and as such can be readily classified.
	lpf.ai.mit.edu /Patents/industry-at-risk.html

	bIPlog at boalt.org: Reform the Patent System - Day 2
		Merges and Mennell's tutorial on Patent Law, patent applications are scrutinized under, among other things, an "obviousness" test.
		Patent examiners now tend to focus on the "prior art", that is, everything publicly known before the invention, as illustrated by earlier patents or other published material.
		Given that, we could continue to apply the "clear and convincing" standard for patents that survive the opposition process, and apply the lower "preponderance of the evidence" standard only to those patents that were not challenged in the formal opposition process.
	www.boalt.org /biplog/archive/000590.html

	General Information Concerning Patents
		Patents are arranged according to the U.S. Patent Classification System of over 400 classes and over 136,000 subclasses.
		Patent agents, however, cannot conduct patent litigation in the courts or perform various services which the local jurisdiction considers as practicing law.
		Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee.
	www.uspto.gov /web/offices/pac/doc/general

	WEB PATENT NEWS--December, 1999
		In anticipation of this step being performed during patent prosecution, a well-written patent application points out the problems left unsolved by the prior art as a way of high-lighting the differences that will be used to establish non-obviousness during the prosecution of the patent application.
		The patent laws of many countries, including those of the U.S., require that an invention be "non-obvious" in order to be patentable.
		Reduction to practice is accomplished either by building and testing a working model of the invention under conditions that prove its utility or by filing a patent application disclosing a complete and operable invention that can be shown to have been conceived by the named inventor(s).
	www.webpatent.com /news/news12_99.htm

	NALSAR Pro... e-neXus for law
		Patents and Industrial Property Rights are �fencing tools�, which used effectively, will help the owners of technology to fence off others using the formers technology.
		Patent system and related issues at a glance / New Delhi: National Working Group on Patent Law, 1990.
		The learner can choose a novel item (not so common, yet handy) and give an opinion on its Patentability and prepare a patent Specification for the article and prepare a comprehensive Intellectual property policy for the commercial exploitation of the article.
	www.nalsarpro.org /FB/CourseCont/scc_pgd_pl.asp

	450a)A Study on the Patent Law Standard of Non-obviousness: Appendix to A Study on the Patent Law Standard of Non-Obviousness: Appendix
		450a)A Study on the Patent Law Standard of Non-obviousness: Appendix to A Study on the Patent Law Standard of Non-Obviousness: Appendix
		A Study on the Patent Law Standard of Non-obviousness
		Appendix to a Study on the Patent Law Standard of Non-Obviousness
	strategis.ic.gc.ca /epic/internet/inippd-dppi.nsf/en/ip00152e.html

	Richard D. Harris
		His practice remains actively involved with patent and trademark prosecution and intellectual property-related transactional projects.
		His practice focuses on U.S. and foreign patent, trademark, copyright and unfair competition matters, with particular emphasis on litigation.
		Weaver Popcorn Co., Inc., which serves as an encyclopedia on the commission of fraud before the United States Patent and Trademark Office, as well as in Custom Accessories, Inc. v.
	www.gtlaw.com /biographies/biography.asp?id=1818

	JACKSON ESQUIRE
		On non-obviousness the inventor can conceal the obviousness in relation to the prior art by not disclosing all the technical detail of the invention in the patent application, or as in novelty by not disclosing all the relevant prior art.
		The first abuse of the inventor can occur before the patent even issues, by making misrepresentations to the Patent Office concerning novelty, utility, and non-obviousness.
		In addition to this, misrepresentation can be used to obtain the patent by not disclosing all the pertinent information on a high potential invention for fear of competitors having access to this sensitive information for their own benefit, as the patent once issued becomes public information.
	www.jacksonesquire.com /history.asp?id=23541&page=1&shopperid=

	University of Georgia - Office of the Vice President for Research - Policies and Procedures Handbook
		Despite the possible variety of definitions of novelty and usefulness, the concept of "non- obviousness" is the most complex of the three and is subject to broad and often inexact interpretation.
		These three criteria are usually the focal point of the patent office's evaluation of patent applications, and in particular, "obviousness" is most frequently cited by patent examiners as the reason an invention is rejected.
		This first office action usually rejects most or all of the inventor's claims on the grounds of obviousness and cites several references, either issued patents or scientific papers, to support this contention.
	www.ovpr.uga.edu /rpph/rph_chp2.html

	Essence of the Proposal
		The CEC/BSA believes that there is no possible way to create distincions between SMEs and non SMEs with patent law and that nothing can be done to offset the unbalance in disfavor of open source software (and shareware).
		Apparently, the European Commission has chosen to back the position of certain lobbying groups (patent attorneys and large IT companies) which may benefit from the extension of the patent system, rather than backing a position based on a neutral assessment of the impact of software patents on innovation, competition, safety and consumers.
		The CEC/BSA recognizes also that open source software developers may have to get a patent license to keep on developing their project and that nothing garantees that they will receive it.
	swpat.ffii.org /papers/eubsa-swpat0202/esse/index.en.html

	Person having ordinary skill in the art - Network Live
		The PHOSITA is a test of "obviousness" which is one of the largest gray areas in patent law.
		Even though these patents were not prosecuted before issue, in case the patentee files a lawsuit against an accused infringer, the patent's validity will still be tested for its obviousness in the court.
		Singapore and Hong Kong, a patent may be issued based on a prior art search report made by a sanctioned international searching authority.
	person_having_ordinary_skill_in_the_art.networklive.org

	The Courts, Congress and the U.S.P.T.O: Taking Steps to Prevent the Patently Absurd from Becoming Patentable
		Prior art is still reviewed by patent examiners to determine non-obviousness of a patent but in a less restrictive manner than for the requirement of novelty.
		Second, the determination of non-obviousness allows prior art references to be combined to invalidate a claim if such combination would be obvious to a person in the field having ordinary skill.
		But, it would seem that efficiency could easily merge into obviousness when it is simply applied to the advent of new technology.
	gsulaw.gsu.edu /lawand/papers/fa02/pennington

	Ethan Frome
		Therefore, if obviousness is to be used to preclude patentability of internet "business method" inventions one must be able to show some motivation to combine the prior art business method the prior art internet.
		Instead, the patent requirement of obviousness should be used to make sure that internet business methods are indeed new inventions worthy of a patent.
		A more likely response to the public outcry against the internet "business method" patents may be the use of the "obviousness standard" to preclude patentability of those inventions.
	www.uiowa.edu /~cyberlaw/cls99/sempaper/fitzg331.html

	Publications
		In assessing obviousness, ‘why was it not done before’ is a powerful consideration, particularly when all the components of a combination have been long and widely known, which can tilt the balance in favour of non-obviousness of the patent.
		It held that ‘why was it not done before’ is a powerful consideration when considering obviousness, particularly when all the components of a combination have been long and widely known, which can tilt the balance in favour of non-obviousness of the patent.
		The court reached a similar conclusion in favour of the patentee for non-obviousness, based on the test laid down in the Windsurfing case.
	www.mwe.com /info/news/euroip0404-patent.htm

	Invention Disclosure Forms
		If there were non- OSU or student contributors, those individuals should also be listed.
		The invention disclosure form asks for an identification of the persons who contributed materially to what is considered to be the novel and non-obvious aspects of the invention described in the disclosure.
		It is important to understand, however, that the final determination of who to list as inventors, both on any patent application and on any patent that ultimately issues, will be made by OSU’s patent counsel applying the legal standards for inventorship.
	otl.osu.edu /information/f-invdisclosure.cfm

	EFF:
		In general, most agreed that the standard of obviousness in 103 and as elaborated in Court decisions should not be changed, that is it is a workable definition that handles most patent applications with no problems.
		In particular, many stated (which was music to my ears) that patent examiners need better access to prior art to provide a better context in which to assess obviousness and novelty, especially for biotech and software.
		Obviousness should be backed up evidence and/or scientific reasoning, not subjective belief.
	www.eff.org /IP?f=pto_nonobviousness_hearing_072094.testimony.txt

	Høiberg: Patents
		It should also be noted that non-published patent applications can be used to assess obviousness in the US, whereas under the EPC they cannot.
		The following examples are taken from the Guidelines for Examination in the European Patent Office to illustrate cases of obviousness and innovative solutions to a technical problem.
		The invention consists in the selection of a particular radical or particular group of radicals from amongst those referred to, as the substituent "R" (the selected radical or group of radicals not being specifically disclosed in the prior art document since the question would then be one of lack of novelty rather than obviousness).
	www.hoiberg.com /services/patents

	Biopiracy: need to change Western IPR systems
		Patents were given for salt manufacturers, for operating steamboats even though these were not invented in the U.S. Later, the recognition and stimulation of inventiveness was added as an objective, and the criteria of novelty, non- obviousness and utility were developed as a test for inventiveness.
		No patent should be given where prior art exists, since patents are supposed to be granted only for new inventions on the basis of novelty and non- obviousness.
		Since patents are granted for new inventions, denial or non- recognition of `prior art' elsewhere allows patents to be granted for existing knowledge and use in other countries.
	www.greens.org /s-r/gga/shiva2.html

	TIIP Newsletter
		A chart based on Lunney's data (see figure), shows that by the 1990s a much smaller share of patents were found invalid on obviousness** grounds.
		In this article, Glynn Lunney reviews the history of the obviousness standard and its transformation under the Federal Circuit (the appeals court for patent cases established in 1982).
		To determine obviousness, that share would be compared to some standard, but Lunney concedes the standard cannot be reliably specified.
	www.researchoninnovation.org /tiip/archive/2002_2_a.htm

	NAP Skim View of:
		patent law doctrine in synthetic chemistry—the doctrine of structural obviousness or the Hass-Henze doctrine.31 Under this doctrine the courts recognized it was within the state of the art to make certain structural changes to a prior art compound and to expect the new compound to have similar properties.
		Apart from the very recent congressional ban on human organism patents,10 clearly a special case, there have been no successful legislative attempts to circumscribe patenting.
		It reduced forum shopping, focused attention and thought on neglected issues of patent law, produced innovations at the trial court level, and in general yielded greater consistency.
	www.nap.edu /nap-cgi/skimit.cgi?isbn=0309089107&chap=81-129

	How Many Clicks Does It Take To Get To The Center of A Controversy?
		However, the justifications cutting against the patentability of business methods in general can also be applied when discussing the obviousness of Internet business methods.
		To summarize, the State Street decision meant that "abstract" methods for doing business can no longer be invalidated based on Section 101, but instead under the doctrine of obviousness, codified in the 1952 Patent Act in §103.
		The Court of Appeals' decision was "based on its own reevaluation of the evidence bearing on the obviousness of the patented invention."
	gsulaw.gsu.edu /lawand/papers/fa03/achey_ventry

	Patent Baristas
		In an earlier ruling, the U.S. Patent and Trademark Office (USPTO) issued an obviousness-type double-patenting rejection and a "Schneller-type" double patenting rejection on the Genentech patent indicating that the patent, awarded in 2001, covered basically the same invention as an earlier Genentech patent that was set to expire next March.
		Apotex counterclaimed that the ‘944 patent was invalid and in due course moved for summary judgment of invalidity.
		The examiners were concerned that the ‘491 patent’s disclosure of the “peroral” application of the peptide may have suggested the oral administration of the peptide for gastrointestinal absorption.
	www.patentbaristas.com (13459 words)

	Patent clerk - Wikipedia, the free encyclopedia
		The work of patent clerks usually includes searching patent and scientific literature databases for prior art, and substantively examining patent applications, that is examining whether the claimed invention meets the patentability requirements such as novelty, "inventive step" or "non-obviousness", "industrial application" (or "utility") and sufficiency of disclosure.
		A patent clerk or patent examiner is an employee, usually a civil servant, working within a patent office and whose work is to examine patent applications as to whether they deserve a patent.
		Major employers of patent clerks are the European Patent Office, the United States Patent and Trademark Office and the Japan Patent Office.
	en.wikipedia.org /wiki/Patent_clerk (165 words)

	TROLL OR NO TROLL? POLICING PATENT USAGE WITH AN OPEN POST-GRANT REVIEW
		FTC Report, supra note 28, Executive Summary at 8 n.26; see also A Patent System, supra note 2, at 6-7 ("The grounds for a challenge could be any of the statutory standards--novelty, utility, non-obviousness, disclosure or enablement--or even the case law proscription on patenting abstract ideas and natural phenomena.").
		Patent watchdog groups argued that JGR--a potential patent troll formed solely to purchase Commerce One's patents--should not be able to use the patents as a vehicle to extract licensing fees and that the patents should lapse into the public domain.
		Patent trolls should be unable to capitalize on market uncertainty by allowing others to unknowingly develop infringing technologies while waiting in the wings to subsequently appear and extract licensing fees.
	www.law.duke.edu /journals/dltr/articles/2005dltr0009.html (5795 words)

	plant patent property rights karela jamun brinjal
		Patents were given for salt manufacturers, for operating steamboats even though these were not invented in the U.S. Later, the recognition and stimulation of inventiveness was added as an objective, and the criteria of novelty, non-obviousness and utility were developed as a test for inventiveness.
		Since patents are granted for new inventions, denial or non-recognition of `prior art' elsewhere allows patents to be granted for existing knowledge and use in other countries.
		Biopiracy and patenting of indigenous knowledge is a double theft because first it allows theft of creativity and innovation, and secondly, the exclusive rights established by patents on stolen knowledge steal economic options of everyday survival on the basis of our indigenous biodiversity and indigenous knowledge.
	www.progress.org /archive/patent03.htm (1652 words)

	Controversial patent could be worth billions of dollars - Nov. 2, 2004
		After the State Street case, all patents applications would be judged by new criteria of novelty, utility and non-obviousness, says Kirk.
		Up to that point patents were only granted for hard processes, things like oil refinement or chemical engineering, but as the tech boom emerged so did patents for computer assisted models in business, blurring the rules between hard processes and virtual processes.
		When companies file patent infringement lawsuits for business method patents they risk the possibility that their patent will be reversed, according to Kirk.
	money.cnn.com /2004/11/02/technology/dell_de (472 words)

	Slashdot Basic Patent Law for Programmers
		Two requirements for a valid patent are that it is novel (the inventor was the first (sort of) to invent that particular thing or method), and non-obviousness (that the invention is not an obvious extension of something that is already known).
		When a new patent is announced, one of the most common criticisms is that the patent is invalid because the patented invention is merely an obvious extension of something that is already done.
		Ordinarily, when someone is found liable for patent infringement, they are prohibited from continuing the infringing activity, and they are ordered to pay the patent holder damages equal to a reasonable royalty for the use of the patent, or the patentee's lost profits.
	slashdot.org /features/99/10/19/1032254.shtml (472 words)

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