Since when have inventions comprised of previously patented components been unpatentable? In my recent dealings with the USPTO, I came away with several axioms, perhaps the primary being this: We live in the "Boombox Era" of patent law, an era in which radio receivers and CD players and speakers and buttons and dials are all individually unpatentable, but in which new combinations of these elements may still be useful and worthy of patent protection. Recent Supreme Court rulings
require that patentable inventions be "novel", "useful", and "non-obvious to 'a person having ordinary skill in the art'". "Novel" and "useful" are simple enough to understand - the patent claim cannot conflict with prior patents (though recall that a claim need not cover component parts of an invention if it is being made on the novel arrangement of them), would be invalidated by sufficient prior art (note: a few descriptive lines on an Internet forum may not qualify here), and must perform a worthwhile function - but what does "non-obvious" mean? My conclusion after submitting a provisional patent application I authored: Whatever the hell the acting patent examiner wishes it to mean. The goal is ostensibly to weed out patent applications that are as trivial and offensive as the glut of "on or with a computer" software patents of the previous decade, but in practice, virtually all inventions are combinational in nature, and virtually all combinational patent claims can either meet or fail the obviousness test, the outcome seemingly hinging primarily on the patent examiner's disposition and mood. Combining two established technologies together in such a way that they both do their expected task and a new and novel result is synthesized through this pairing seems as reasonably patent-worthy as any invention that draws upon elemental technologies. In retrospect, such a pairing would be entirely understandable
to an engineer familiar with those separate devices, but would that pairing be "obvious
"? A large majority of the inventions we use daily and that shape our lives are quite "obvious" even to us lay-persons once the underlying innovations are explained to us (as in a patent application), but would we have been able to invent these devices (or even conceive of them) with no prompting? The "obviousness" provision is therefore the primary hangup in nearly all patent application processes today, and those inventions that do eventually win protection are less often those that truly are "non-obvious" and more often those created by entities that have the tenacity and deep pockets necessary to fight the USPTO's initial rejection(s).
Now combine this hazy and discomfiting state of affairs with the USPTO's very recent shift
to a "first to file
" system. Today, if a lone inventor were to disclose his new invention to someone, and that unscrupulous person raced to the patent office and filed the idea as his own, the actual inventor would be blocked from producing his own invention, detailed documentation of the conception and development of it be damned! This may never happen in practice, but the prevailing opinion around here that by sharing our ideas they are somehow afforded protection is faulty, and further complicated by the Internet itself being a shaky platform
on which to construct a prior art claim.
It would seem the only reasonable course of action is for inventors of any stripe to file thorough and professionally overseen provisional patent applications
(I spent less than $500 in attorney and filing fees, half of which went toward a patent search). These are not reviewed for patentability by the USPTO, but effectively save the date of filing against a future utility patent application, affording the applicant a one-year period of protection under which to seek additional funding and support without the need for public disclosure of the invention; this is the source of the "patent pending" designation. Information can then be shared with parties who would otherwise shy away from signing an NDA, and with sufficient capital, the inventor can undertake a "real" patent application (planning for his initial application to be rejected on grounds of "obviousness" and only accepted after much back-and-forth with the USPTO (and many thousands of dollars in attorney's fees)). Even the "bad" outcome of this endeavor - the final and definitive rejection of the patent by the USPTO - would be advantageous to an inventor who had used his year of provisional protection well, for unpatentability does not mean that no one can profit by the idea, but rather that everyone
can, and the inventor would be in a unique position to capture the market for his new device.
Is Palmer's patenting of the Rift somehow unscrupulous, then? Preposterous, I say - it is
his invention. He would be claiming the novel combination of previously known elements, and would have no claim against other inventors who used the same elements in ways that were novel to their own implementations. Further, there is no such entity as "The Patent Police" - patents exist as legal documents within the confines of legal proceedings only
, and if a patent holder wishes to allow some violation of his patent, that is entirely his right. Patents are only as evil as their holders - Palmer could patent the Rift's gestalt form, continue to encourage the DIY Rift movement as a positive generator of buzz, goodwill, and a sense of community, and only pursue legal action against some company seeking to make a profit by exactly imitating the Rift's design. Is this not what patents are for?
Patents are far from perfect (the Chinese issue alone looms very large over any such discussions), and a compelling case can perhaps be made that patents are doing more harm to our society than good. However, to refuse to embrace this imperfect system we are bound to is to invite the kind of imitation and misappropriation that patents are supposed to protect us from. Palmer makes no claims to have invented key components of the Rift, but (in my view, at least) he has every right to claim his unique combination of them. To say otherwise is to say the entire patent system is fundamentally flawed and should be totally dismantled; I might tend to agree at that point, but that's not the debate we seem to be having here.
KBK wrote:nightmarish den of cutthroats
Spot on, KBK. The business world has little use for idealism, but benefits greatly from maintaining appearances that nurture a kind of idealistic naivety. If we're speculating about Sony and Microsoft here, consider this outcome: The Xbone and the PS4 stubbornly refuse to embrace VR even as the consumer Rift is greeted as a revitalization of gaming. The Rift is seen as a competing product, and rather than challenge Oculus by creating alternative HMDs, Sony and/or Microsoft double down on their refusal to explore consumer VR. They drag Oculus to court; Oculus having been so virtuous as to eschew all patent protection, they are left utterly helpless when pitted against the massive patent portfolios of their rivals. Some tenuous connection is made, palms are greased in courthouse alleys, and a decision is made that renders the Rift unsaleable in the American market. Oculus goes down in flames, third-party software projects are abandoned, and the electronics conglomerate behind this turn of events dusts its hands and continues to consider VR a "failed" technology, one they have no interest in devoting their resources toward.
This outcome is preferable to the one where Oculus at least has some ammunition to bring to the inevitable fight?
: The Rift may not even be patentable, but Oculus would be foolish to do anything other than doggedly pursue whatever patents it can convince the USPTO to grant. This is only somehow "evil" if they start to use these patents to harass and discourage the inventors of the Rift's component pieces or the creators of largely dissimilar HMDs that share some key feature of the Rift. Oculus being without defensible patents could potentially do more harm to the mainstream adoption of VR than using such patents in an offensive and trollish manner might. Have a little faith?