[posted by Justin Levine – not Patterico]
The current U.S. Patent system is a thoroughly corrupt racket that stifles human innovation and free markets in favor of special interests and statist monopolies. Regretfully, much of the international community has also followed suit.
Because there is no “competition” between different courts in finding the proper interpretation of Patent Law, the Federal Circuit has been allowed to screw up something as simple as interpreting what the word “obvious” means. They have even gotten away with ignoring Supreme Court precedent in this area for several years. Partly as a result, patent cases now routinely employ “experts” to try and educate juries as to what is or is not “obvious”. Got that?
Reading the tea leaves of Supreme Court oral arguments can admittedly be tricky. But it looks like this ruling could bridge ideological lines among the Justices.
A few choice excerpts from the oral arguments:
JUSTICE ALITO: Well, once you define the teaching, suggestion and motivation test that way so that it can be implicit, it can be based on common sense, I don’t quite understand the difference between that and simply asking whether it’s obvious. Could you just explain what that adds?
MR. GOLDSTEIN: Well, all that it adds is an analytical framework. It’s an elaboration. The word “obvious” –
CHIEF JUSTICE ROBERTS: It adds a layer of Federal Circuit jargon that lawyers can then bandy back and forth, but if it’s — particularly if it’s nonexclusive, you can say you can meet our teaching, suggestion, or motivation test or you can show that it’s nonobvious, it seems to me that it’s worse than meaningless because it complicates the inquiry rather than focusing on the statute.
JUSTICE SCALIA: I agree with the Chief Justice. It is misleading to say that the whole world is embraced within these three nouns, teaching, suggestion, or motivation, and then you define teaching, suggestion, or motivation to mean anything that renders it nonobvious. This is gobbledygook. It really is, it’s irrational. MR. GOLDSTEIN: Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar — remember, every single major patent bar association in the country has filed on our side –
CHIEF JUSTICE ROBERTS: Well, which way does that cut? That just indicates that this is profitable for the patent bar. (Laughter.)
MR. GOLDSTEIN: Mr. Chief Justice, it turns out that actually is not accurate.
JUSTICE SCALIA: It produces more patents, which is what the patent bar gets paid for, to acquire patents, not to get patent applications denied but to get them granted. And the more you narrow the obviousness standard to these three imponderable nouns, the more likely it is that the patent will be granted.
MR. GOLDSTEIN:…The experts say it’s not obvious and the reason nobody did it for 12 years and the reason that Asano was never combined with an electronic throttle control is explained in the record in this case and it’s twofold. The first is, and I have to take you now to the picture of Asano because that’s what the claim that is supposed to make our invention obvious is. They say you would have done this with Asano. What the experts say is this Asano thing, no one would ever use it at all.
CHIEF JUSTICE ROBERTS: Who do you get to be an expert to tell you something’s not obvious.
MR. GOLDSTEIN: You get – CHIEF JUSTICE ROBERTS: I mean, the least insightful person you can find? (Laughter.)
Extra credit test: When your Adobe Acrobat Reader boots up to read the transcript of the Supreme Court oral arguments in the KSR International v. Teleflex patent case, try and quickly count the number of patents Adobe is claiming as part of its software.
This just illustrates another aspect of the problem. Any patented invention can be thought of as a combination simpler components. If those components can also be separately patented, then it prevents technological innovation by getting around the limitations of patent law in terms of scope and time.
Think of it in terms of copyright law: How many copyrights exist in your morning newspaper (for the few of you that still read the hard copy version)? The paper as a whole is copyrighted as a compilation work, right? But then, each page of the paper can claim its own separate copyright. Each individual article can also claim a separate copyright. The author can also claim a valid copyright in each individual paragraph of an article. Each advertisement is protected by a separate copyright. Each advertisement likely contains several individual images that also can claim their own copyright protection.
So if you were to copy a whole edition of your morning paper, would you be violating only one copyright, or tens of thousands? The answer is both, and every figure in between – depending on what a plaintiff finds to be the most convenient for the case. This lack of objective principle runs throughout intellectual property law- and it stinks to high heaven. (So says I.)
[posted by Justin Levine]