Patent Kaboom!!!

I have not seen too much on today’s unanimous ruling from the Supreme Court today on obvious patents.

As far as I’m concerned, it’s a bombshell.

From Justice Kennedy’s opinion:

We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts

Did he say ‘stifle?’ Was that Justice Kennedy, or Eben Moglen?

But it gets even better:

When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious

Market pressure? Finite number of identified solutions? Holy Cow! Suddenly there are new ways to determine obviousness. I’ll bet the IP attorneys at Microsoft are scrambling right now trying to assess the damage.

I have a good amount of experience in this area since I was involved in patent litigation between Resonate and Alteon over a patent we filed on ‘delayed resource binding for resource-based load balancing’, otherwise known as web switching.

I blogged about this a long time ago, here and here. If you read through these old posts you’d find that we lost, not because of obviousness, but because unfavorable claims construction made it impossible for us to prevail.

Some valuable lessons learned. Patent’s didn’t protect my business at all. By the time this was litigated, the market had moved past the features this technology enabled. The millions of dollars spent on litigation were wasted.

It’s a great day for Open Source since these new ‘obviousness’ criteria will be used to blunt the effects of the patent infringement canard.

UPDATE: Finally, some more coverage and analysis in today’s WSJ law blog.


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