Supreme court to hear patent case

CNet reports that the Supreme Court is to consider standards for patent "obviousness"

This is long overdue for many reasons, not just because of the interminable number of ridiculous patents that have been granted but because the current system is failing the very people it is meant to serve. It now takes several years for the USPTO to even begin a patent examination. Prosecution takes even longer.

It is not surprising to see Cisco and Microsoft to be filing an amazes brief here. They both spend hundreds of millions of dollars each year filing patent applications they know they can never enforce. They know that if they do not file for a patent someone else will, and then they will send a demand for royalties. The real evil with defensive patents though is that the USPTO then has the gall to claim that their makework is evidence that the system is working.

What is more surprising is the addition of Hallmark to the brief, until you find out about the specific patent case they were the defendant in which involved a bizarre patent describing the most trivial variation imaginable on a 40 year old machine.

The brief itself is well worth reading. It puts the point across very forcefully that the granting of junk patents creates an anti-commons effect.

What is really interesting though is the slew of case law from the 1880s and 1930s showing how much stricter the standard for invention was in those days. There is no question that the Federal Circuit would have accepted each of the invalidated patents today.

I suspect that part of the problem here is the creation of a separate circuit to hear patent cases. The judges in the cases have become advocates for the USPTO in the same way that the USPTO has become an advocate for patent holders no matter how idiotically obvious their claims may be.