Here’s another reason the global patent system doesn’t make any sense. One of the main criteria against which an inventor’s application will be assessed is the ‘obviousness’ of the solution being proposed. If it’s deemed to be obvious, it can’t be granted.
The ‘obviousness’ test is one of those lovely grey areas that helps reinforce the only real rule in the patent system: the lawyers get rich and the inventors don’t.
The real stupidity in play, however, is that ‘obviousness’ is one of the best tests of whether a solution is a good one or not. If it’s a good solution it should – in retrospect – look obvious. The ‘why didn’t I think of that before’, palm-clasped-on-to-forehead’ moment.
There are multiple tricks patent lawyers can deploy to resolve this problem (we wrote about several in Issue 116 of the SI ezine), but the simplest is effectively the murder-mystery novel technique. A good murder mystery writer successfully obscures the identity of the murderer until a big exciting final reveal. We the readers hadn’t guessed who it was going to be, but when he or she is revealed, we should rapidly realise it had been obvious all along. The butler did it.
Fortunately for the patent lawyers most inventions are rubbish and so they don’t have to be too smart in terms of playing this novelist trick. If its actually a good solution, however, then its likely you’ll see evidence of the trick being played. If it’s a lazy lawyer, you’ll see it used most frequently with words like ‘surprisingly’ or ‘unexpectedly’. As in, ‘we mixed the two combustible chemicals together and when we tried to burn them, unexpectedly, they now completely refused to combust.’
So here’s the real problem. It’s one that comes from TRIZ. And specifically the Trends of Evolution part of the toolkit. Here’s the part that gives inventors and (if they chose to listen) Patent Examiners a clear road map defining successful solution directions. We’ve found 38 of them so far. Here’s one of the more simple ones:
This is known within the TRIZ World as ‘Space Segmentation’. It’s the Trend that basically says all physical objects, for as long as they still exist, will have an advantage if they add progressively more and more holes, that in turn get smaller and smaller, and eventually, get some kind of ‘active’ element added to them. It’s a classic ‘doing more with less’ trend. There are multiple different reasons for adding the holes – making things lighter, for example, or increasing surface area, or improving material transfer. Lots of reasons. But the point from a patent ‘obviousness’ perspective is that any inventor that becomess the first to realise that adding a hole to, say, a semiconductor ball grid array is a good thing can’t be allowed to have that holey-solution patented, because even though it’s the first time in a semiconductor, the TRIZ Space Segmentation Trend tells me that adding holes is totally obvious because that’s precisely how tens of thousands of prior-art inventions have been successful.
Now, for some reason, the patent lawyers don’t seem to want to know about these 38 Trends. I’ll leave you to work out why that might be. From my perspective, I’ve stopped worrying why they will or won’t listen, because what we’re doing is publishing all of the ‘obvious’ evolution jump ideas that the TRIZ Trends tell us will happen at some point in the future.
Even better, I have a piece of software that will do it automatically for me: Take the Space Segmentation Trend. All I need to do is read through all the Claims in all the patents of the world looking for nouns that describe physical objects – scalpel, pill, shoe, compressor blade, toothbrush, you name it – and write a new set of Claims that add ‘at least one hole’ to each of them.
Repeat for the other 37 Trends, for all the patents, and we’ve just defined the future evolution path of every component, process and system on the planet. Now each one is undisputably ‘obvious’ so even the blindest rent-seeking leach of a Patent Lawyer has no choice but to acknowledge the fact. And in the process of making that happen, I firmly believe we will end the patent stranglehold the large enterprises of the world have on the rest of us.