Comments on: Obviousness is Obvious http://www.feld.com/wp/archives/2007/07/obviousness-is-obvious.html Mon, 13 Feb 2012 21:06:34 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Scott Davis http://www.feld.com/wp/archives/2007/07/obviousness-is-obvious.html/comment-page-1#comment-5357 Scott Davis Sat, 04 Aug 2007 03:27:25 +0000 http://www.feld.com/wp/?p=1761#comment-5357 Until we actually discover a new math or a new logic, nothing in software can be non-obvious -- particularly in retrospect. Pattern-matching is so much significantly lower-order cognitive function than abstracting-to-clarity, one wonders how any software could not be reduced to the combination of multiple irreducably simple concepts. I am not taking a position on the merits software patents in general, but I am saying that this framework essentially categorizes all software as outside the domain of patent protection. Until we actually discover a new math or a new logic, nothing in software can be non-obvious — particularly in retrospect. Pattern-matching is so much significantly lower-order cognitive function than abstracting-to-clarity, one wonders how any software could not be reduced to the combination of multiple irreducably simple concepts.

I am not taking a position on the merits software patents in general, but I am saying that this framework essentially categorizes all software as outside the domain of patent protection.

]]> By: D. C. Toedt http://www.feld.com/wp/archives/2007/07/obviousness-is-obvious.html/comment-page-1#comment-5356 D. C. Toedt Wed, 01 Aug 2007 19:19:07 +0000 http://www.feld.com/wp/?p=1761#comment-5356 Yes, there are some junk patents out there, including in software, where the collection of documented prior art isn't as well-developed as in other fields. (I was a patent lawyer in a prior life and had to defend more than one client against what I regarded as junk software patents.) A test of "I know it when I see it" for obviousness certainly sounds tempting. But it would invite something very much akin to Monday-morning quarterbacking. Patent examiners and courts always have to wrestle with the fact that hindsight is 20-20. Once the invention is explained to you (which by law the patent application must do), you think, "oh, yeah, I see how that works." Then it can sometimes be just a short step to, "hell, that's nothing special, anyone could have thought of that." Unfortunately, however, inventors don't have the luxury of that kind of hindsight when they actually come up with inventions. Yes, there are some junk patents out there, including in software, where the collection of documented prior art isn’t as well-developed as in other fields. (I was a patent lawyer in a prior life and had to defend more than one client against what I regarded as junk software patents.)

A test of “I know it when I see it” for obviousness certainly sounds tempting. But it would invite something very much akin to Monday-morning quarterbacking.

Patent examiners and courts always have to wrestle with the fact that hindsight is 20-20. Once the invention is explained to you (which by law the patent application must do), you think, “oh, yeah, I see how that works.” Then it can sometimes be just a short step to, “hell, that’s nothing special, anyone could have thought of that.” Unfortunately, however, inventors don’t have the luxury of that kind of hindsight when they actually come up with inventions.

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