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Authored by: Anonymous on Wednesday, October 17 2012 @ 12:38 AM EDT |
I doubt PJ will reply. Patent law is crazy even to other
lawyers, but the real problem here is that the law is just
plain vague. Here's a good summary:
http://www.uspto.gov/patents/resources/general_info_concerni
ng_patents.jsp#heading-5
"Even if the subject matter sought to be patented is not
exactly shown by the prior art, and involves one or more
differences over the most nearly similar thing already
known, a patent may still be refused if the differences
would be obvious. The subject matter sought to be patented
must be sufficiently different from what has been used or
described before that it may be said to be nonobvious to a
person having ordinary skill in the area of technology
related to the invention. For example, the substitution of
one color for another, or changes in size, are ordinarily
not patentable."
Or in the exact words of the statute,
http://www.law.cornell.edu/uscode/text/35/103,
" A patent may not be obtained... if the differences between
the subject matter sought to be patented and the prior art
are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person
having ordinary skill in the art to which said subject
matter pertains." [followed by a bunch of exceptions which
I'll ignore.]
So, you imagine a "person having ordinary skill in the art",
and ask yourself what would be obvious to this hypothetical
person. The courts have identified some "factors" to
consider as evidence of what would be obvious to such a
person, but it's still pretty vague.
Here are the regulations the USPTO uses to try to implement
the law:
http://www.uspto.gov/web/offices/pac/mpep/s2141.html#sect214
1
The problem is that no matter what the standards are
supposed to be, the USPTO is understaffed and will grant the
patent. Then, at trial, the burden of proving obviousness
is on the accused infringer. [ Reply to This | Parent | # ]
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- Vague. I like that word - Authored by: Anonymous on Wednesday, October 17 2012 @ 08:15 AM EDT
- Yeah, right. - Authored by: Anonymous on Wednesday, October 17 2012 @ 02:07 PM EDT
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