Federal law states that a patent cannot be granted for an invention that a person of “ordinary skill” in the same field could have created. But since many things become obvious in hindsight, in 1982 the Federal Court of Appeals added a legal test stating that “teaching, suggestion or motivation” must also exist that could lead an ordinary person to develop the invention. This requires prior written documentation that is often difficult or impossible to find, and as a result, no obviousness case has ever been brought before the Supreme Court.
Wild West of Patents
With a green light to patent just about anything, the number of software patents has skyrocketed tenfold since 1990 to over 40,000 software patents approved in 2006 alone. Many of these patents were granted for technology that was, well, patently obvious or overly broad, including Amazon.com’s infamous patent on one-click shopping.
Such wide-sweeping patents make it difficult for companies to innovate, when during the course of normal development, their engineers use these obvious technologies in their own products. Such infringement is often unintentional, given the complex language, large quantity and wide breadth of software patents.
And patent owners lately have been quick to sue, winning some monstrous judgements including Eolas’ $521 million haul against Microsoft for using browser plug-ins. That particular patent was so broad that it could threaten just about any web software that accesses a server for additional content, including Flash and streaming video. These large public judgements have made software patents a big business unto itself, resulting in a number of small patent-troll companies that exist solely to litigate and license their way to a quick payday.
Divided on Court Decision
Technology companies such as Cisco and Intel were quick to praise the Supreme Court’s decision. “There will be a better opportunity for examiners to weed out patents or applications that are not worthy of getting patents, and it will go a long way toward re-establishing patent quality,” said Emery Simon, counselor to the Business Software Alliance, whose members include Adobe, Cisco and Microsoft.
Others were concerned that the decision will add uncertainty to the already confusing and controversial patent system. “I think it’s very fair to say that it’s going to be harder, more costly and more time-consuming for inventors to obtain U.S. patents in all areas of technology, and particularly in areas with predictable art, as we call them, such as mechanical inventions and software and methods of doing business,” Robert Greene Sterne, founding director of the patent law firm Sterne Kessler Goldstein & Fox.
As both a patent holder and small-business software developer that must navigate the minefield of software patents, I have a first-hand view of both sides of this argument and will share my thoughts on this subject in a future article.
Article published on May 1, 2007
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