October 2, 2007
Steve Perlman is a Silicon Valley computer maven, who helped colorize the Macintosh back in 1986, and invented WebTV. In the British online publication The Register, whose byline is "Biting the hand that feeds IT," Perlman extols the reality of the Patent Deform Act of 2007: "This is isn't pharm versus high-tech. This is people who need patents versus people who don't need patents." That includes those in the Coalition for Patent Fairness, a corporate lynch mob who'd rather be free to steal IP than have license to protect it.
Perlman is against first-to-file, but his arguments are easily countered. "The cost of invention is less in a first-to-invent country." That's not true, for at least a couple of reasons: one, because provisional applications give a year's grace to cogitate. Two, multiple inventions can be disclosed in a single application; through divisionals, multiple inventions can be spawned from a single application. The patent office has made continuations next-to impossible, but that's a different horse apple. The cost systemically of first-to-invent is much higher: of interferences, and in litigation, of having submarine (unknown) priority dates.
As an aside, numerous members of the Coalition of Patent Fairness are Patent Hawk clients, who apparently has no problem with biting the hand that feeds it; though all in the cause of real patent fairness. The irony of Patent Hawk's position is that his bread-and-butter work is killing patents, so improving the patent system is bad for business.
Posted by Patent Hawk at October 2, 2007 12:06 PM | The Patent System
"The irony of Patent Hawk's position is that his bread-and-butter work is killing patents, so improving the patent system is bad for business."
Patent Hawk, I know exactly how you feel - that's how I make my living too.
Posted by: anonymous at October 2, 2007 2:20 PM
In KSR, the Supreme Court reaffirmed that ‘‘[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.’’ When considering obviousness of a combination of known elements, the operative question is thus ‘‘whether the improvement is more than the predictable use of prior art elements according to their established functions.’’
Doesn't this in effect eliminate all inventions? An invention is made of known elements combined in a novel way. Say there are elements A, B and C in the invention and A does not exist in the prior art. Then A is also a new invention for example made up of elements D, E and F. Say D does not exist in the prior art then it is a new invention.
So an invention can only be novel if one of its elements is novel, and part of that element novel and so on ad infinitum. To paraphase Aristotle, "it is not everything that can be new and non obvious or the chain of novelty would be endless".
Also one can substitute the above reasoning for method patents. A first invention might be composed of methods G, H, and I of which G is new and non obvious. So G being a new method would be a new invention only if one of its method elements J, K, and L (say J) was new and non obvious, and again the chain of novelty must be infinite to be an invention. Like with Fermat infinite descent is needed for a proof.
So any invention if broken down into enough steps in a method and elements in an apparatus eventually gets to a combination of known elements and methods. To say otherwise gives an infinite lineage of new inventions or circular reasoning.
The only way combining elements or methods can be unpredictable is if a new law of nature is discovered. For example someone might have discovered superconductivity by cooling wires for electrical transmission. But this unpredictability arises from the law of nature's effects so this in effect is patenting a law of nature which is forbidden. Since all the other elements and steps, i.e. the wire, the materials used, and the cooling would be known then all would be obvious except for the disqualified unpredictable result.
So a patent can only be non obvious if it discovers a new law of nature upon which it is invalidated. So there is no longer any such thing as a patent.
Posted by: MJC at October 13, 2007 2:18 AM