Comments on: Here we go again - US Supreme Court to consider reforming standard for obviousness http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/ Still clinging to first-to-invent Tue, 07 Oct 2008 23:10:48 +0000 http://wordpress.org/?v=2.3.1 By: Nathanael Nerode http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-101 Nathanael Nerode Fri, 25 Aug 2006 05:51:07 +0000 http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-101 A substantial improvement would be for the courts to consult some actual PHOSITAs. This would easily eliminate most of the worst junk-patent cases in software and elsewhere, because there would be no trouble getting programmers to testify to the obviousness of obvious things (or indeed to the non-obviousness of non-obvious things). Oddly, consulting actual persons of ordinary skill seems to be the last thing considered..... A substantial improvement would be for the courts to consult some actual PHOSITAs.

This would easily eliminate most of the worst junk-patent cases in software and elsewhere, because there would be no trouble getting programmers to testify to the obviousness of obvious things (or indeed to the non-obviousness of non-obvious things).

Oddly, consulting actual persons of ordinary skill seems to be the last thing considered…..

]]> By: J. Matthew Buchanan http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-100 J. Matthew Buchanan Fri, 30 Jun 2006 14:05:34 +0000 http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-100 I'm not sure I understand your comment, Mike. The question of whether a claimed invention would have been obvious at the time of the invention is evaluated objectively, under <em>Graham v. John Deere Co.</em> (383 U.S. 1 (1966)). On the issue of the proper combination of references to establish obviousness, which is the focus of the <em>KSR v. Teleflex</em> case, the motivation to combine test is also an objective one. Indeed, the suggestion, teaching, or motivation to combine can be found in the knowledge of the PHOSITA. Am I mischaracterizing or not understanding your question? I’m not sure I understand your comment, Mike. The question of whether a claimed invention would have been obvious at the time of the invention is evaluated objectively, under Graham v. John Deere Co. (383 U.S. 1 (1966)).

On the issue of the proper combination of references to establish obviousness, which is the focus of the KSR v. Teleflex case, the motivation to combine test is also an objective one. Indeed, the suggestion, teaching, or motivation to combine can be found in the knowledge of the PHOSITA.

Am I mischaracterizing or not understanding your question?

]]> By: Michael Smith http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-99 Michael Smith Thu, 29 Jun 2006 21:41:40 +0000 http://unitedstates.promotetheprogress.com/here-we-go-again-us-supreme-court-to-consider-reforming-standard-for-obviousness/558/#comment-99 Seems to me that the PHOSITA standard, if implemented as the sole requirement for obviousness, will be implemented in a capricious and arbitrary manner. The solution would be to make PHOSITA an objective standard. I can't find any proposals as to how to impose an objective standard onto PHOSITA, have you seen any such proposal? Seems to me that the PHOSITA standard, if implemented as the sole requirement for obviousness, will be implemented in a capricious and arbitrary manner.

The solution would be to make PHOSITA an objective standard.

I can’t find any proposals as to how to impose an objective standard onto PHOSITA, have you seen any such proposal?

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