Wednesday, August 29, 2012

How to Reform the Patent System by Enforcing a Strict Concept of Obviousness as the Normal Development of the State of the Art

What is "non-obvious" about a normal development of the state of the art?

Here is an interesting question. Please name TEN "non-obvious" inventions in the last 10 years that were NOT anticipated by the state of the art. Only 10. You know, things out of nowhere that somebody discovered. Uh....

We have not found anyone able to do that.

Although the legal standard is that "obvious" inventions are not patentable and that only "non-obvious" inventions and discoveries deserve the protection of patentability, the reality of patent practice in the legal system has nothing to do with that legal standard.

Rather, to believe USPTO stats, 500,000 "NON-OBVIOUS" inventions and discoveries are made every year by patent applicants and HALF of those are granted as "bolts from the blue", things no one could have anticipated. Of course, that is nonsense.

In fact, if there were even 2,500 bona fide "non-obvious" inventions or discoveries among those 250,000 -- as judged by the normal development of the state of the art -- that would already be a miracle.

The problem is that modern patent practice seeks to patent many normal "obvious" developments of the state of the art...

and that is the principle reason that the patent system is broken.

If only "non-obvious" inventions or discoveries were actually patented and if every patent application to the USPTO had to contain a short paragraph specifically declaring what is "non-obvious" -- and why it is non-obvious, given the state of the art --  in the patent application, then the number of patent applications per year would drop dramatically.

We could care less about the theoretical "teachings" that the confused Federal Circuit throws out as a standard. Few inventors pay attention to "teachings". Rather, they are guided in their work by the state of the art. We want to know e.g. whether an invention is dependent upon the materials and tools that are made available by the state of the art. A good example here are thinner handsets enabled by thinner manufacture of solid state electronics. Sorry, but a "thinner" handset in such a case is "obvious" and should not be patentable for that feature. This applies across the board to ANY invention.

To what degree is it enabled by the state of the art and what has the alleged inventor actually ADDED that is "non-obvious" to the state of the art and how significant is that addition, or is it just a normal development of the state of the art. If the state of the art is at 9, and then we go to 10. That is obvious.

The patent applicant in EVERY case should have to explain WHY his or her allegedly non-obvious invention was not made 10, 20, 50, 100 or 200 years ago -- for the legal presumption should be that inventions or discoveries, as they in fact are, are usually normal developments of the state of the art at any given time, relying on the technological state of things in their era.

What has happened over the last 50 years is that the granting of patents for obvious state of the art developments has led to "a patent culture" and that culture finds more and more patent applications being made and more and more patents being issued, thus creating a massive roadblock to innovation.

 Number crunching Patents, Population and Demographics in the USA
  • More than 500,000 patent applications per year at the USPTO
  • ca. 250,000 patent grants per year at the USPTO
In recent years the USPTO has been inundated by an average of about half-a-million utility and design patent applications per year, of which an average of somewhat less than 50% have been granted.

As one can see at U.S. Patent Statistics Chart Calendar Years 1963 - 2011, ca. 50 years ago there were only 90,982 utility and design patent applications in 1963, as compared to 535,188 such applications in 2011.  That is nearly a six-fold increase (535188/90982=5.9). Total patent grants in 1963 were 48,971 but in 2011 there were 247,713 patents granted, a five-fold increase (247713/48971=5.0).

In that same period, the population of the United States increased from 179,323,175 in 1960 to 308,745,538 in 2010, a 1.7-fold increase, meaning that patent applications and grants have increased 3 or more times the rate of population growth -- and much of that population growth in the USA has been in demographic working sectors that make few or no patent filings.

For purposes of better comparison of the data, even if we restrict the data to U.S.-origin patent application filings only (and filter out the foreign patent applications), then we find 66,715 U.S.-origin patent applications in 1963 as compared to 247,750 U.S.-origin patent applications in 2011, a 3.7 fold increase (247750/66715=3.7), more than twice the rate of population growth.

Accordingly, an unhealthy "patent culture" has developed, which is contributing to the breaks in the patent system that we see.

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