Patents on Home Designs Getting Sharper Scrutiny
A new pilot program launched by the U.S. Patent and Trademark Office in June provides unprecedented public access over the Internet to pending patent applications.
The pilot’s initial focus is on approximately 250 patent applicants in the area of software design, but if the program is successful it is expected to be implemented in other fields, including design patents, where NAHB has made good progress in recent years to reduce suits against builders and developers for patent infringement for using common or obvious housing designs.
The design patent examination and approval process of the U.S. Patent Office became a concern for builders and developers roughly a decade ago when some very basic and obvious designs were granted patents — including some that had been commonly used for a while, such as simple facades and rear entryway configurations.
Under the law, to be eligible for a patent the design cannot have been previously known or used or be an obvious compilation expanding on previously published patents and materials. The problem at the time was that the approval process was highly secretive in nature. Persons or industries outside the patent office had no opportunity to review pending applications and provide input, and the office itself acknowledged that its examiners had little expertise in the area of housing design.
At the invitation of the office, NAHB in 2000 provided extensive published housing and site designs, or “prior art,” that could be used in patent application reviews. And in April 2002, the office agreed to allow applications to be reviewed online before their final approval, providing a new opportunity for the association to review and monitor the prior art and concepts being cited and provide additional prior art to patent examiners when it was needed.
Pursuing a goal of the U.S. Patent Office to expand its examiners’ access to prior art with relevance for their decisions, the pilot program that is now being tested relies on submissions from the public. Anyone with information about a patent application can post comments online, and ask others to comment. A rating system is used to bring the most respected comment submissions to the immediate attention of the patent examiners.
In the legal arena, builders and developers who have been concerned about patents being awarded for obvious combinations of prior art for housing design received good news in a decision from the U.S. Supreme Court this spring.
In the case of KSR International Co. v. Telefex, Inc., the court’s April 30, 2007 decision clarified an unsettled issue over the ease of obtaining a patent for an obvious “invention.” Under patent law, an invention must be novel, and not obvious. In the case, however, a parent was granted for the combination of an adjustable gas pedal with an electronic control.
Sued for infringing on the patent, KSR argued that the invention was nothing more than an obvious combination of existing prior art and was nothing new.
Reversing the U.S. Court of Appeals, the Supreme Court ruled emphatically that predictable combinations of prior art cannot be patented.
For more information, e-mail David Crump at NAHB, or call him at 800-368-5242 x8491.