U.S. Supreme Court, April 30, 2007
While technically not a video game case, this landmark Supreme Court case just (expectedly) rocked the patent world. The technology: drive by wire for automobiles. The issue: when is an invention nonobvious? The answer: don't know for sure, but we DID learn a little more about when an invention IS obvious--whenever the invention is merely the combination of known elements with predictable results.
This case will have a ripple effect in the patent world, regardless of technology area. No longer is the Federal Circuit's "Teaching, Suggestion, Motivation" test the BMOC. While the TSM test is one way to determine obviousness, it is by no means the ONLY way to do so. The KSR case is a welcome relief for all those who have been advocating that it's too easy to get a patent under the Federal Circuit's TSM regime, but at the same time the post-KSR era will experience higher prosecution costs and less certainty regarding patentability of any invention (at least in the short term, until some clarity is provided through subsequent caselaw).
How does this apply to video game patents? Folks have been criticizing patents for years by saying that the USPTO is granting patents to combinations of known ideas and concepts, including game play patents where the claimed "invention" is a combination of known elements found in previous video games. Such patents were being granted because there was no prior art that explicitly or implicitly suggested the combination, even when each of the combined elements was being used in its normal manner, i.e., providing predictable results. No longer will that be the case. Instead, the price of poker, i.e., the "inventiveness" required to get a patent, just went up, and more will be required of game developers before a patent will be granted for a game play concept.
There will be many who relish in the nuances of the KSR opinion's text, and provide lengthy analysis regarding its mantras, so I won't go into all that here. But I will provide some notable quotes:
- "If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability."
- "a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions."
- "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility."
- "A person of ordinary skill is also a person of ordinary creativity, not an automaton."