The non-obviousness of the non-obvious clause – by “Lynn W”

In critiquing patent law, it helps to return to the original rationale for protection. As Merrill and Elliott’s patent primer states, “A utility patent is an exclusive right of limited duration over a new, non-obvious invention capable of practical application…The right—to prevent others from making, using, selling, offering for sale, or importing the patent holder’s invention—is granted in return for publication of the invention.”

Unfortunately, it is not exactly obvious what constitutes new, non-obvious, and useful. In addition to reading about the “absurdity” of headline-making patents such as Google Doodles and Amazon’s one-click payment feature, I did a quick search through Google Patents and found countless other inventions that not only seem bafflingly unoriginal, but also appear to be useless. Here are some of my favorites (with existing patents that inspired their creation following in parenthesis):

Kissing shield game for “teaching safe affection” (inspired by the “plastic garbage bag holder and sealer,” “sanitary face mask,” “inflatable art frame,” “arrangement for separating an area of operation or treatment in the oral cavity,” and “surgical face mask”)

Rock, paper, scissors card game (inspired by “board game,” “game comprising a pack of cards,” “card game,” and “card game deck and methods of play”)

Giant gummy bear whose “primary object is to provide a giant gummy bear that will overcome the shortcomings of prior art devices” (inspired by 16 patents including “life-like toy animal” and “toy ball”)

Nose pick offering a novel “ornamental design” (inspired by “novelty trophy and base,” “combined lottery ticket scraper and key ring,” “nasal cleaning insert”)

Generally, I think these examples of un-new and un-non-obvious patented items can be separated into two categories, both of which would be better off without the patent.

The first category is that of patents that are not particularly innovative, but are widely useful. I would put Amazon’s one-click payment system into this category. Amazon CEO Jeff Bezos claims that the patent was a necessity because “We don’t want to be another Netscape.” When Barnes & Nobles tried to use the same system, Amazon sued it for infringement. But – would a one-click Barnes & Nobles really have stolen market share from Amazon when Amazon’s main competitive advantage against the book retailer is price? And even if Walmart – the ultimate low-price retailer – were to copy the one-click model, would that have stopped Amazon from creating the system in the first place?

My guess is no, simply because like any rational retailer, Amazon strives to improve user experience in any way possible to drive up sales. The competitive advantage exists the moment that Amazon adds a new feature for its users, and it continues to improve the customer’s Amazon experience even when the same feature gets adopted by other retailers. The patent simply reinforces and strengthens the competitive advantage – but at a cost to the user, who can only enjoy an expedited shopping experience with one Internet retailer. Besides, all Barnes & Nobles had to do to avoid infringement was to use a two-click system, which hardly seems different from the one-click innovation. It thus remains questionable whether or not the patent really helped Amazon sustain a competitive advantage in the online shopping checkout domain.

The second category is that of patents that are not particularly innovative or useful. Like the kissing shield game. Is this invention really worth the time and labor that goes toward filing and processing a patent? The costs are even greater when you consider the hefty legal fees that many naive inventors are pay in order to patent products that have no profit potential. Of course, once in a while you get an idea like the Pet Rock that generates millions in revenue, but as of 2005, only 3,000 patents in the U.S. were commercially viable out of a total of 1.5 million. There must be a better way to filter out the excess.

At the end of the day, it’s important to remember that the ultimate purpose of a patent is to benefit the public by fostering greater creativity through the means of benefiting the inventor. A study by Bessen & Hunt in 2004 found that software patents have actually resulted in lower R&D intensity and thereby, less creativity. Meanwhile, the vast majority of patents are clearly not providing any monetary benefit to the inventor. Bezos was right when he called for “fewer patents, of higher average quality, with shorter lifetimes.” One way to begin is to offer a better definition of the new, non-obvious, and useful.