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The virtue of the patent is that it rewards invention, and its productization, in cases where either the invention itself or its productization would not have o

The virtue of the patent is that it rewards invention, and its productization, in cases where either the invention itself or its productization would not have otherwise been profitable, either because of the difficulty of inventing it, or because it isn't affordable to be the first to develop it. This suggests a very natural rule of thumb for patent admissibility: would the patented idea reasonably have been independently invented or productized prior to the date that the patent expires? Invention and productization are very different roles here, so perhaps an invention patent could last up to, say, 15 years, whereas a productization patent would only last half that. So a “one click shopping” invention patent would have to argue that within 15 years nobody else will have the idea, and a “one click shopping” productization patent would have to argue that within 8 years of the idea being public but not acted on, nobody would have been willing to front the cost to productize it. This allows precisely those patents which one would expect provide value, and not the rest.

nybble41 5y ago
> This allows precisely those patents which one would expect provide value, and not the rest. That's only true if we assume you have a handy oracle available to determine what actually would happen if the invention were neither published nor productized by the original applicant or their licensee. Otherwise the patent office is merely speculating without any evidence on which to base their decision. Once the invention is out in the wild there is no objective way to determine whether it "would have been" independently invented or productized by someone else, so you can't even get feedback (15+ years delayed) on how accurate your speculation has been.
- Veedrac 5y ago
  For sure the actual award would be a matter of judgement, as would any challenge in court. But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross. This is what fundamentally results in patent races, where any ideas that can claim to take any nominal amount of intellectual effort to think of must be rushed to the patent office before the competitor discovers it themselves. Because it doesn't matter for elligibility if three people all thought on a problem simultaneously and all stumbled on the same answer, as long as that answer took at least a little time to discover in each case.
  - nybble41 5y ago
    > But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross. Yes, and right now about the only way to fail the "novel and non-obvious" requirements at the time of application is to try to patent something which already exists. (And even those cases sometimes slip through the system.) A patent might be invalidated as obvious later if someone else comes up with the same thing and can demonstrate that they had absolutely no knowledge of the patent or anything covered by it, but that's both unlikely (for products generally available to, and discussed by, the public) and an extremely hard thing to prove even if true. In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else. This is basically how things stand now with the assumption that the invention is non-obvious. Getting this overturned would be at least as hard as getting a previously issued and productized patent invalidated for reasons of obviousness following "independent" reinvention.
    - Veedrac 5y ago
      > In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else. Obviously if the patent office ignores the change, the change wouldn't help. That's a fairly meaningless analysis though. I am not saying the patent office should deny specifically only patents they can definitively prove will be invented in the next 15 years. I am saying they should use that as the line by which they estimate novelty. Patent applications are not like criminal cases, there need be no beyond reasonable doubt.

nybble41 5y ago

> This allows precisely those patents which one would expect provide value, and not the rest. That's only true if we assume you have a handy oracle available to determine what actually would happen if the invention were neither published nor productized by the original applicant or their licensee. Otherwise the patent office is merely speculating without any evidence on which to base their decision. Once the invention is out in the wild there is no objective way to determine whether it "would have been" independently invented or productized by someone else, so you can't even get feedback (15+ years delayed) on how accurate your speculation has been.

Veedrac 5y ago
For sure the actual award would be a matter of judgement, as would any challenge in court. But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross. This is what fundamentally results in patent races, where any ideas that can claim to take any nominal amount of intellectual effort to think of must be rushed to the patent office before the competitor discovers it themselves. Because it doesn't matter for elligibility if three people all thought on a problem simultaneously and all stumbled on the same answer, as long as that answer took at least a little time to discover in each case.
- nybble41 5y ago
  > But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross. Yes, and right now about the only way to fail the "novel and non-obvious" requirements at the time of application is to try to patent something which already exists. (And even those cases sometimes slip through the system.) A patent might be invalidated as obvious later if someone else comes up with the same thing and can demonstrate that they had absolutely no knowledge of the patent or anything covered by it, but that's both unlikely (for products generally available to, and discussed by, the public) and an extremely hard thing to prove even if true. In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else. This is basically how things stand now with the assumption that the invention is non-obvious. Getting this overturned would be at least as hard as getting a previously issued and productized patent invalidated for reasons of obviousness following "independent" reinvention.
  - Veedrac 5y ago
    > In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else. Obviously if the patent office ignores the change, the change wouldn't help. That's a fairly meaningless analysis though. I am not saying the patent office should deny specifically only patents they can definitively prove will be invented in the next 15 years. I am saying they should use that as the line by which they estimate novelty. Patent applications are not like criminal cases, there need be no beyond reasonable doubt.