Supreme Court Retracts Patent Protection
Today’s two patent decisions came-out as expected — both cases make patents less valuable. Because of KSR, patents will be more difficult to enforce and easier to invalidate. The AT&T case cuts in-half the value of many of today’s most valuable software patents.
I had expected that the KSR decision would operate something like a sledge-hammer and entirely shift the focus of obviousness analysis. Instead, the opinion appears to simply refine the particulars of how prior-art can be combined and when a “combination patent” will be seen as obvious. Inventions that introduce the world to entirely new concepts and elements will continue to be more valuable. Of course, those types of inventions are often more difficult to achieve than ones that simply recombine a set of well-known parts.
There is some hope that the KSR decision will eventually result in a restoration of respect and pride in the US patent system — concepts that have been missing for a number of years. This decision may result in fewer patents issued by the USPTO — If the stars align, that new generation of heartier patents just might help lead us to a new level of innovation.
While I generally agree with Mr. Crouch, and love his Patently-O blog, I think there is a strong possibility that the KSR decision may improve the state of patents in the software world, and actually make patents _more_ valuable.
Software patents (method patents to be precise) are seen in a very negative light by some in the software industry. They are not looked at as a tool that advances the state of the art, nor as guides for the next generation of programmers.
Instead, they are seen by some as nothing more than an opportunist’s playground, filled with patents on ideas that are common in the real world, or appear to be granted without even a hint of prior art research (Creative vs. Apple anyone?).
If the KSR decision gives examiners the ability to dump some of these patents on the front side, software patents may become a more useful tool for incentivizing creativity.
Making bad patents easier to invalidate isn’t necessarily a bad thing. The question that remains is, “will the USPTO take this to heart and allow examiners to kick out the weak-sister patents and overbroad claims that have plagued our industry”?
Comment by Morgan Reed — April 30, 2007 @ 4:57 pm