Monday, May 14, 2007


Patent not pending

A couple of weeks ago, the US Supreme Court handed down a unanimous decision limiting patents for things that come from “ordinary innovation” and that “yield predictable results”:

If the combination results from nothing more than “ordinary innovation” and “does no more than yield predictable results,” the court said in a unanimous opinion, it is not entitled to the exclusive rights that patent protection conveys. “Were it otherwise,” Justice Anthony M. Kennedy wrote in the opinion, “patents might stifle, rather than promote, the progress of useful arts.”

Because most inventions combine previously known elements, the court’s approach to deciding what sort of combination is so “obvious” as to be ineligible for patent protection will have widespread application. The result will be to make patents harder to obtain and defend.

“Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress,” Justice Kennedy said. He added that such patents were also undesirable because they might deprive earlier innovations of “their value or utility.”

Of course, patents have always been meant to be for novel, useful, and non-obvious things, but that standard has been applied in a very lax manner that's resulted in a plethora of patent-infringement lawsuits that have tied up the court system, caused inconvenience to consumers, and cost some companies a great deal of money. The Supreme Court is now saying that apart from all that, this lax enforcement of the standards for granting patents also “retards progress” — something that many of us who deal with these sorts of things have known for a long time.

The problem, of course, the part that retards progress, is the worry that as soon as you start trying to put technology together to create something new, a patentholder will sue for patent infringement along the way, before you get to the new and interesting bits. Some patents are so general that it's hard to imagine how to get past them to the really innovative stuff.

I'm thrilled to see this decision. I've personally reviewed many computer software patents that I've considered to be obvious extensions or combinations of existing technology, and I've shaken my head and said, “Geez, who decided that this patent should be issued?” Maybe there'll be less of that now, and maybe we'll actually have to do some real innovation to get something patentable.

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