I recently read an article this week that discusses another dispute between Google and the Vederi company. The issue was whether the technology truly infringed upon the patents kept by Verdi.
Also, the obviousness was not evident based on the results or images. It does not seem Google was using it to maintain commercial dominance in terms of profits. As Judge Kozinski initially stated, the term "substantially elevations" seemed to limit the type of image possible for this Street View technology. This difference in interpreting the term indicates that the difficulty in making these decisions. What is obvious for one person may not be obvious for another; the detail may be open to interpretation. This conflict in perspective may require another third party to look at the issue or the best alternative since the two judicial decisions do not agree with each other.
Perhaps, it is also important to look at the influence of power in determining obviousness. In the case of the judicial system, there is already a power difference between the ninth court of appeals compared to another federal circuit. Especially in this case, the judicial system may be subjective in determining if the image technology of the companies are different. In fact, this issue brings to light the issue that it may be obvious that the images taken by Google and the images described in Verdi's patent are quite different but it is up to the judge to determine the outcome. Here, the case indicates a classic example of absolute power since one federal circuit judge is trying use their authority to show Judge Kozinski's decision was unjustified.
http://patentlyo.com/patent/2014/03/kozinski-reversed-circuit.html
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&f=G&l=50&d=PALL&S1=07239760&OS=PN/07239760&RS=PN/07239760
After reading many cases like this one, I feel like the subject matter on obviousness is really subjective. Google's patents are facing many of these claims. Especially for software, it seems like these problems of obviousness arise everywhere. I wonder if this is the best way to go about it because anyone can argue for or against obviousness.
ReplyDeleteI agree. Obviousness is such a subjective term, even if it is determined by experts. In the end, it is the judge who makes that decision, and each judge has his or her own level of comprehension about a particular field. I wonder what the effects of patent litigation will be if there were additional requirements even for judges who review patent cases, and each industry can only be reviewed by a judge with some expertise in that field.
ReplyDeleteHi Norman,
ReplyDeleteI agree with you here. Being obvious is super subjective. How can a judge decide what is obvious? What is obvious to you, may not be obvious to you. Is obviousness based on what an expert claims or what a normal person claims? It's extremely subjective, and I think that's evident through this example of image technology. This also comes back to software patents, which I wrote about this week. Given this image technology is somewhat a software patent: should software be patentable in the first place?