From jbessen@researchoninnovation.org  Fri Feb 23 13:10:40 2001
Date: Fri, 23 Feb 2001 08:10:40 -0500
From: Jim Bessen jbessen@researchoninnovation.org
Subject: [Patents] obviousness
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Pilch wrote:

>Prof Bessen carefully replied to one of your Patnews statements.

>Did you post the reply on Patnews?

In his email to me on February 3, Greg said he wanted to put the reply =
Eric Maskin and I wrote out on PATNEWS. Greg recognizes that "we both =
agree on a lot of things, like the fact the US needs a
lot more discussions and studies on the patent system as a whole." =
Although he obviously disagrees with Eric and I on some points, I think =
he recognizes the value of such discussions for a better long run =
resolution of the present problems. Our reply clarifies some =
misinterpretations of our paper.

Regarding triviality and obviousness, I don't know the European =
situation, but in the U.S., the courts have dramatically changed the =
standards without any change in the law (once again). Bob Hunt (an =
economist at the Federal Reserve Bank of Philadelphia) has written about =
this. See Nonobviousness and the Incentive to Innovate: An Economic =
Analysis of Intellectual Property Reform, p. 8-9 at

http://www.phil.frb.org/files/wps/1999/wp99-3.pdf

To simpify Bob's account (I urge you to read the original), prior to the =
mid-80's, one could defend against patent infringement by arguing that =
the patent was "obvious to a skilled practitioner of the art." The =
courts have added a criterion of commercial success. The argument goes =
that even if a patent seems obvious in hindsight, if no one made a =
commercially successful product using that patent, then it couldn't =
really have been obvious. This largely eliminates the obviousness =
defense.=20

This sort of elastic legal thinking is at odds with the patent statute =
and is a key factor permitting the flood of what-you-and-I-would-call =
obvious patents. So the Dutch MPs have a good idea, but the devil is in =
the details of implementation.=20

Jim Bessen

PS I am not a professor, but Eric Maskin is.

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<DIV><FONT size=3D2>Pilch wrote:</FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT size=3D2>&gt;Prof Bessen carefully replied to one of your =
Patnews=20
statements.<BR><BR>&gt;Did you post the reply on =
Patnews?<BR></FONT></DIV>
<DIV><FONT size=3D2>In his email to me on February 3, Greg said he =
wanted to put=20
the reply Eric Maskin and I wrote out on PATNEWS. Greg recognizes that =
"we both=20
agree on a lot of things, like the fact the US needs a<BR>lot more =
discussions=20
and studies on the patent system as a whole." Although he obviously =
disagrees=20
with Eric and I on some points, I think he recognizes the value of such=20
discussions for a better long run resolution of the present problems. =
Our reply=20
clarifies some misinterpretations of our paper.</FONT></DIV>
<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV><FONT size=3D2>Regarding triviality and obviousness, I don't know =
the=20
European situation, but in the U.S., the courts have dramatically =
changed the=20
standards without any change in the law (once again). Bob Hunt (an =
economist at=20
the Federal Reserve Bank of Philadelphia) has written about this. See <A =

href=3D"http://www.phil.frb.org/files/wps/1999/wp99-3.pdf"><FONT=20
size=3D2>Nonobviousness and the Incentive to Innovate: An Economic =
Analysis of=20
Intellectual Property Reform</FONT></A>, p. 8-9 at</FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT size=3D2><A=20
href=3D"http://www.phil.frb.org/files/wps/1999/wp99-3.pdf">http://www.phi=
l.frb.org/files/wps/1999/wp99-3.pdf</A></FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT size=3D2>To simpify Bob's account (I urge you to read the =
original),=20
prior to the mid-80's, one could defend against patent infringement by =
arguing=20
that the patent was "obvious to a skilled practitioner of the art." The =
courts=20
have added a criterion of commercial success. The argument goes that =
even if a=20
patent seems obvious in hindsight, if no one made a commercially =
successful=20
product using that patent, then it couldn't really have been obvious. =
This=20
largely eliminates the obviousness defense. </FONT></DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT size=3D2>This sort of elastic legal thinking is at odds with =
the patent=20
statute and is a key factor permitting the flood of =
what-you-and-I-would-call=20
obvious patents. So the Dutch MPs have a good idea, but the devil is in =
the=20
details of implementation. </FONT></DIV>
<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV><FONT size=3D2>Jim Bessen</FONT></DIV>
<DIV><FONT size=3D2></FONT>&nbsp;</DIV>
<DIV><FONT size=3D2>PS I am not a professor, but Eric Maskin=20
is.</DIV></FONT></BODY></HTML>

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