spf-discuss
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Re: Microsoft released more info Aug 30, 2004

2004-09-03 02:04:39
All this is all very well, but there appears to be no procedure for putting
a case to the USPO concerning prior-art or obviousness.  Do you know of any
such procedure?  Without an opportunity to put a case, there's little point
in discussing what the case will be :-/


Slainte,

JohnP.
johnp(_at_)idimo(_dot_)com
ICQ 313355492




----- Original Message -----
From: "Seth Goodman" <sethg(_at_)GoodmanAssociates(_dot_)com>
To: <spf-discuss(_at_)v2(_dot_)listbox(_dot_)com>
Sent: Friday, September 03, 2004 10:55 AM
Subject: RE: [spf-discuss] Microsoft released more info Aug 30, 2004


From: Graham Murray
Sent: Friday, September 03, 2004 3:09 AM


"Bradley D. Thornton" <Bradley(_at_)NorthTech(_dot_)US> writes:

And the proof in the pudding for, "obvious to someone of ordinary
skill in the art.", is the existence of other systems which perform
these functions, along with evidence of basic sysadmin certification
programs which require this knowledge

That sounds backwards. Surely it should be something more like "If
this problem were set to N practitioners in the art and more than P%
of them came up with or suggested the mechanism in the patent
application (not having seen the patent application) then it is
obvious".

That's right, and this is the tricky part.  You need to narrow your
statement to "N _ordinary_ practitioners in the art".  This means you
don't test your most experienced, grey-beard,
reads-too-much-to-have-a-life, uber-geek sysadmin.  You test your
average, 40 hr/week (OK, quit laughing, I want that job, too), mid-level
sysadmin.  This is a very difficult call to make, as who can say what
someone of "ordinary skill" actually knows?

But the standard remains that if someone with "ordinary skill in the
art" would likely come up with a similar solution when presented with
the same problem, the invention is deemed obvious and not patentable.
You can still create a novel invention by taking two or more well-known
items, combining them and getting an unobvious result.  So an invention
can contain prior art elements, as long as it combines them in unobvious
ways or the combination yields an unobvious result.  _Something_ must be
novel about it, and that is normally a very subjective decision.

Some inventions are such good ideas that they seem perfectly obvious --
only after you hear them.  Those can be very difficult to argue, and you
typically have to show that a lot of other people have been searching
for that solution without success.

--

Seth Goodman

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