Tuesday, January 17, 2012

The Patent Glut and Resulting Litigation Chaos after Chakrabarty and Diehr

The world is in the midst of patent chaos,
and this is confirmed e.g. by patent litigation.

The number of patent applications at the USPTO in the United States from 1963 to 1983 increased from 90,982 to 112,040,
an average increase of ca. 1,000 patent applications per year.

In the 27 years since then,
patent applications have risen to a high of 520,277 in 2010,
an average increase of ca. 15,000 patent applications per year.

What happened?

That is easy to explain,
for at fault are two disastrous United States Supreme Court decisions:

Those cases were followed in turn by a host of similarly wrong court decisions, summarized at the History of Software Patents at BitLaw.com.

The remarkable thing is that patent protection -- according to the U.S. Supreme Court holdings -- is not to be granted for "obvious" inventions, e.g. that are simply normal developments of the state of the art to someone versed in that field, a person called a  PHOSITA = Person Having Ordinary Skill In The Art. To obtain a patent, the invention has to be "non-obvious".

Since the USPTO grants about 50% of all patent applications, this would mean that something like 250,000 patents have been or will be granted for the 2010 patent applications -- all, and this is THE LAW -- by definition, for "non-obvious" inventions and discoveries.

For the patent law industry, it is as if progress were somehow the march of the non-obvious,

whereas, in fact, exactly the opposite is the case.

Normal technological progress is obvious, and follows the path of where things are leading anyway, rather than where they are not leading.

Almost all new developments in high tech sectors are made by people researching in "obvious areas" defined by "the state of the art".

Almost no one is researching in areas that are "not obvious", where discoveries and profit are most unlikely.

In fact, the bulk of patent applications are made by mainstream technological companies researching the obvious next step in their field, and the patents they seek relate to normal research progress made by normal people, not by inventors or discoverers finding non-obvious things.

Accordingly, the current state of patent law is inexcusable, as it involves the granting of hundreds of thousands of patents for clearly OBVIOUS and PREDICTABLE discoveries in the sense that they are anticipated by the state of the art -- and hence --  also anticipated by prior art, as forming that state of the art.

Steven Spielberg on War Horse: American Regard for History Has Become Even Worse with Social Media

What is history to America today?

Anita Singh, Showbusiness Editor at The Telegraph
in her article
Steven Spielberg on War Horse: America has less regard for history
quotes Steven Spielberg, director of "War Horse":
"I think my regard for history is more of a European regard for history. Social media has taken over in America to such an extreme that to get my own kids to look back a week in their history is a miracle, let alone 100 years. Europe is closer to history."
The danger of a people not having a sense of history is that they tend to commit the same errors that their ancestors committed before them because they know no better.

Moreover, in times of trouble, such citizens see only their own banal problems of the moment. They have no clear vision of where the are going and no wise understanding of where they have been. Being lost in the jungle is similar.

Why Do America's Conservatives Outnumber the Liberals by About 2 to 1: David Brooks Discusses Mistrust of the Federal Government

Here is another article that is a MUST read.

David Brooks has recently been producing op-eds at the New York Times which are real eye openers in identifying issues that need to be discussed.

His newest effort is a piece titled Where Are the Liberals?, as Brooks asks, inter alia:
"Why aren’t there more liberals in America?"
I am not sure that either conservatives or liberals are going to be too happy with this article, because neither camp fares too well in it, but what Brooks writes probably represents a good share of the truth of things the way they really are. Brook writes:
"The most important explanation is what you might call the Instrument Problem. Americans may agree with liberal diagnoses, but they don’t trust the instrument the Democrats use to solve problems. They don’t trust the federal government."
Read the whole thing here. It is really quite brilliant.

Hat tip to CaryGEE. Thank you!

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