Monday, April 22, 2013

"Obviousness" #24

One of the five basic tenants of patentability is "nonobviousness."

The other four are: subject matter requirement, written description, utility, and novelty. For the purpose of this blog, I'm not going to go into these other four and will simply discuss the word "obviousness." Nonobvious means that a "person having ordinary skills in the art wouldn't have easily thought of it given the plurality of prior art."

Even when combining two prior art references, it may not be obvious to do so, for example a glow stick and a toothbrush to create a glow-in-the-dark toothbrush. Are the two products obvious to combine? If so, then a patent might not be granted, but if it's not, then a patent could be issued.

Also, the more prior art references an examiner needs to cite in order to reject claims based on obviousness, the weaker their argument against patentability.

I want to discuss how the patent system has incorporated such a subjective notion into a legal framework. Although it seems as though there is some legal precedent to distinguish between what is obvious and what is not in certain industries, I feel that the concept of obviousness is too hard to legally define from an objective standpoint.  


Computer Pen? #23

A patent was granted to Apple last month that describes a pen that doubles as a wireless device: capable of sending and receiving text messages, emails, and voice data. This patent reveals a portable wireless computer of sorts that would be equipped with a cellular and or GPS technology that would allow for wireless communication. It would also act as an advanced digital pen that would include accelerometers to recognize handwriting and facilitate speech-to-text and text-to-speech conversations. This pen would also feature a touch screen, a microphone, speaker, and rechargeable battery. Interestingly, in some cases the patent describes the device as a cellular telephone and in others, a portable computer. Based on our deconstruction of a patent last week in class, I think it's interesting to note that these alternating names may significantly impact the effect of this patent.

Perhaps most notable is the turnaround time it took for this patent to get approved and issued. Initially filed in 1998, the the patent was first issued in Sept. 2011, but was again examined and approved by the USPTO after Apple decided to add descriptions about the wireless and cellular features.

Perhaps Apple will never make this product and may only sit on the patent for as long as they have legal oversight over it. But this story brings up two very important questions about the patent system.

1. Why did it take so long for the patent to get issued when it was initially filed in 1998?

2. What are Apple's intentions with this patent? To actually create the product? To protect themselves against competitors who want to make a similar product? To create a revenue stream by licensing this technology to other companies?