I may be a legal layperson, but I thought patents were supposed to be new, useful and nonobvious. A growing problem in our industry is not patents themselves, but how they are issued. Patents are submitted to the Patent Office (PTO), reviewed and then issued. If you have an issue with the legitimacy of the patent, you hire a lawyer and go to court.
When applying for a patent, you are supposed list other work that preceded your idea. The people using the identified items are considered to have prior art and the PTO determines whether the new idea is novel using these submissions.
The weakness in the system is determining whether a submission is obvious or not. Examining the issue in the context of software is difficult and many believe the PTO does not have the capabilitiy to make these judgements. The issue has been kicking around for a while, and had made its way to Congress again.
This week a hearing was held on the topic of patent reform. In his opening remarks, Rep. Howard Berman (D-CA) said:
If the patent system allows questionable patents to issue and does not provide adequate safeguards against patent abuses, the system will stifle innovation and interfere with competitive market forces.
This hearing is exploring the idea of providing a period, after review, for the community to comment on the submission before the patent is issued. This approach would allow for more information to be collected that in turn would be used to determine whether a submission was obvious. The community would be used to help the PTO make the determination before the patent is granted.
Continue reading ‘It Looks Obvious to Me’
