This part of the post is actually pretty meaty and worth exploring in more detail. Some points:

1. By the same token, if a technology is not evolving rapidly and someone is the first to do something, then that is incredibly powerful evidence that it is not obvious. Surprisingly, this does not seem to be the law right now. See:

http://www.cafc.uscourts.gov/opinions/08-1528.pdf

2. It is true that somebody is always first, but is that first person going to spend $5000 getting a decent patent application drafted and another couple of thou getting it issued? Answer: generally no, at least not if the person who thinks of the new thing thinks that it is no big deal.

3. This five dollar bill paradigm is also why I think the definition of prior art should be changed and that everything that happens before an application PUBLISHES should be prior art against it — basically, if somebody gets an idea first, but one or more other people get the same idea QUICKLY AND INDEPENDENTLY after the initial idea-getter, then the idea was obvious. Of course, it is tough to judge, at the margins, whether somebody get is truly working independently of the first idea-getter unless they are in a “clean room.” However, it the law presumes that everything done before the application publishes is independent of the putative inventor, and that everything after is not independent, then that seems like a fair approximation and a useful one.

4. Now, if the law would be changed to what I want it to say, then there would be a mad rush to get applications written, filed and published. But:

(a) that is incredibly good from the perspective of maximizing the timely and wide (but especially timely) distribution of new information; and

(b) it still takes time to draft up an application and get it on file — if the technology is really evolving that quickly, then someone else, probably someone not all caught up in drafting patent applications, will publish / release the idea in the interim — or, to put it another way, defensive publications would become hugely effective because one could be second or third to a new idea and still shoot down the earlier parties by publishing (eg, on their blog) before the others have gotten their filings in — you can’t do that under the current system.

That is what third party requested, ex parte reexamination is for, Luis.

Don’t get me wrong. I do think the definition of prior art should be changed and expanded. I think that prior art should be anything that is out in public (that is, publications, publicly accessible web pages, non-secret commercial products and prototypes) BEFORE THE PATENT APPLICATION PUBLISHES. On a related note, applicants should have the option to publish upon filing or anytime after that.

This would be much, much, much simpler than the current def’n of prior art as codified in 35 USC 102. And my proposed definition makes a lot more sense. However, we are not going to get sensible reforms until more of the pundits and public make it past patent jurisprudence kindergarten.

It is actually much worse than that. In practice, non-obviousness is largely conflated with a review of what has been published in prior patent filings and in journals- i.e., with what is in the databases that an examiner can search. So if it has been sold in an actual product it still likely won’t come to the examiner’s attention unless the feature was also described in a patent application or in an academic journal, which as we know was vanishingly rare until very recently.

And if our buddy “The Sanch” had made that blog post in 1989 it would mean something. But guess what . . .

wait for it . . .

wait for it . . . .

He didn’t! Hahhaha. Hindsight is 20-20. Time to pay the inventor for showing Microsoft the future that is now our present. It’s only money, Bill.

Don’t forget to check out my patent blog:

http://fedcirpatentcaseblurbs.blogspot.com/