Tuesday, November 22, 2005

Obviousness & Overly Broad Protection

The AEI-Brookings Joint Center for Regulatory Studies released a new study titled 'Competition, Innovation and Racing for Priority at the USPTO'. The report focuses on instances of "interference," which is the term the patent office uses for simultaneous pending applications that cover the same invention(s) and the process used to resolve these conflicts. The report says:
We find that while interference cases are in general rare, they are highly concentrated among chemical and biomedical firms. Biotechnology patent applications are so likely to be subject to interference litigation that a question arises about their character: a high rate of interfering means that multiple researchers are chasing a large patent prize associated with a well-defined research topic. This in turn suggests that either the scope of biotechnology patents is too broad or the bar for obviousness has been set too low.
Sounds a lot like we've said in the past about obviousness and overly broad patent claims. As quoted above, the report finds interference to mainly be a problem in biotech, but this ignores obviousness and overly-broad definitions for a number of other fields in which patents are pursued aggresively mainly by large companies and less so by individuals practicing the art, such as in computer software. If every shareware or open source developer filed claims on every aspect of software they developed, I'm sure that the number of interferences in this field would dwarf that in biotech and all other fields combined, for instance.

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