Obviousness is Obvious

In my never ending – often Don Quixote like – quest against absurd software patents, I must pause in the midst of my day and give a standing ovation to Judge William Schwarzer (San Francisco – Federal) for dismissing a lawsuit from Friskit Inc. against RealNetworks citing the Supreme Court’s April ruling in KSR v. Teleflex.

I hope this is the first of tens of thousands of dismissals as a result of KSR v. Teleflex.  For those of you studying along at home, the WSJ summary of the KSR ruling is: “In KSR, the Supreme Court rejected a “rigid” application of existing tests for obviousness in favor of a more “expansive and flexible approach” that would give judges more discretion. If a person of ordinary skill in the relevant subject area would “be able to fit the teaching of multiple patents together like pieces of a puzzle” then the patent is obvious, the Supreme Court ruled.”

I love this description.  I’ve always felt obviousness with regard to software (and software patents) was easy to define, but many lawyers, courtrooms, and owners of obvious patents disagree with me.  Maybe we should simply adopt Supreme Court Justice Stewart’s definition of pornography for non-obvious software patents – “I know it when I see it.”