In another obvious example of people stealing ideas from my blog, the US Supreme Court today released a decision which says, in short, “a lot of patents these days are STUPID“. I heard it on NPR’s headlines at 6pm ET, but nothing more about it all evening (including on Marketplace, which I am taking as a signal that the opinion must have been released late in the day). Hopefully it’ll get more coverage tomorrow.
Many of the articles I found about it were pretty lame, but I liked this one at Forbes and this one at the LA Times. I even indulged and went to the actual Court opinion which was actually pretty readable and contained a remarkable amount of information about the history of gas pedals.

Yes, gas pedals. The basic issue here was a gas pedal that can be positioned to suit the driver’s preference. But that’s not the patent. The pedal does not pull a cable that opens the throttle mechanically, but rather an electonic signal was sent to open the throttle. But that’s not the patent either. The patent concerned the placement of the sensor. Specifically, moving it from the footpad (as was already presented in a 1995 patent) to the arm of the pedal. One is tempted to think that I must just be misunderstanding, because surely a patent would not be issued for moving a sensor from one part of the pedal arm to another. But, this comment from Justice Stephen Breyer in November (during the arguments of the case) really makes me think I’ve got it correct:

Is the Teleflex invention like moving a garage door sensor from the lower hinge to an upper hinge?

Well, the court voted unanimously that this patent should be considered invalid. In fact, they ruled that the entire basis by which it was awarded was flawed. The opinion part of The Opinion begins as follows: “We begin by rejecting the rigid approach of the Court of Appeals.” The Court ruled that a test known as the “TSM test” was incorrectly being used as the One True Test of an invention’s obviousness. The Court’s ruling today saying that while the TSM test can be helpful, “[h]elpful insights […] need not become rigid and mandatory formulas.” The opinion is being read, then, as to call into question any patent that was awarded on a similar application of this test. The NPR snippet I heard claimed that the number of affected patents would be in the hundreds of thousands. I jumped up and down with glee when I heard that.

A few more choice quotes from the Opinion:

The question is not whether the combination was obvious to the patentee but whether the combination was obvious to a person with ordinary skill in the art. … [F]amiliar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle. … A person of ordinary skill is also a person of ordinary creativity, not an automaton.

And finally, this summary

[T]he results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

After that statement, The Opinion goes on to cite the exact same section of the US constitution that I cited in my last post on this blog! Those damn pirates on the Supreme Court have plagerized my intellectual property!!

Ok, to close more seriously: a saw a woman today wearing a T-shirt that said something like “The first thing we’d do is kill all of the lawyers.” Lawyers get blamed for much. Rich capitalists get blamed for much too. It’s obviously not the case that all lawyers and all rich people are pure good, and I’m not going to claim anything like that. But I think lawyers and rich people get blamed for lots of things that are really the problems of our laws. If we have laws that allow governmentally enforced monopolies to be granted for matters as simple as where on a pedal arm a sensor is placed, then the capitalists are going to try to get the monopolies and the lawyers are going to try to keep them safe. Now, other lawyers working for other capitalists will sometimes challenge those monopolies, and I’m thrilled with today’s news about such a case. But I can’t blame the lawyers or the capitalists for the fight. They are just doing what is natural in the face of bad intellectual property law. If the government didn’t issue these stupid patents in the first place, the capitalists and their lawyers wouldn’t look so stupid trying to uphold them. But of course, it’s much more fun to blame lawyers and rich people for our problems than to talk about copyright and patent law. Whatever the case, hopefully today’s ruling will knock some sense into the United States Patent and Trademark Office, or at least bolster the courage of private parties to refuse to pay royalties to holders of dumb patents.

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