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If I read them correctly the whole business of deciding if something is obvious is seriously broken in that it seems to be limited to combining claims from exis

If I read them correctly the whole business of deciding if something is obvious is seriously broken in that it seems to be limited to combining claims from existing patents. This, of course, isn't even close to what "obvious" means to those "skilled in the art". I, like many others, have run across so many patents that should not have been issued at all. This isn't limited to software. There are examples across disciplines, like the guy who got a patent for running wires inside clothing to connect devices or the company that got several patents on using pulse-width-modulation to control the intensity of LEDs to mix colors or most software patents. In hardware I have seen lots of patents that cover the exact same thing. I have seen patents for things that don't work. And, patents for things that I knew had been available or done prior to the filing date. I call these "implementation" patents rather than true inventions. The term refers to the fact that a modern skilled engineer or team of engineers would be more than capable of coming up with that or a myriad of other implementations when given a problem to be solved. That's what engineering is all about. Many engineers across time and distance are able to solve similar problems and end-up with similar solutions. This is what we are trained to do. This is also the part of the human and other animals: the use of our brains to solve problems. It seems that the patent system ought to be reformed in such a way that the rules recognize who we are, what we are taught, what we do, what we are capable of and, in general, the fact of knowledge acceleration. Today it should be exceedingly hard to receive a patent on just about anything. Patents should be reserved for true invention and not implementation. Today's environment is such that there's so much distributed knowledge across so many disciplines that most "inventions" that are patented are really cases of someone choosing a solution to a problem (not inventing one) and then hiring an attorney to try and monopolize it. Case in point: The Apple "slide to unlock" patent. Someone chose that solution from available knowledge. No sane person would suggest that this qualifies as an invention by any possible imaginative stretch. This was a UI decision that the lawyers at Apple got a patent for. They got a patent for, effectively, the analog of a mechanical slide switch made to look nice, nothing less. Not an invention, but they have a patent to say otherwise. I am not against patents. I am against the granting of patents for non-inventions. Today the granting of a patent should almost be so rare as to make national news. Just a few per year. In fact, they should be rarer and rarer with time, to the point that those granted the few patents that should make it through the system per year would be invited to the White House to receive a Presidential Innovation award or some such thing. It only stands to reason that, as technology advances, there will be less and less true inventions per year. Part of the problem was alluded to on the reddit thread: the USPTO makes money and Washington takes it away. Fix that and you might just fix the system. Maybe the patent review process should be open to anyone. Yes, your competitors, anywhere in the world, get to examine and weigh-in. If an invention passes such a test it is probably deserving of a monopoly for twenty years. This also means that someone will really think hard before spilling all the beans in front of the entire world. Only a true invention, where other engineers go "This guy deserves a patent for this!" should be granted patents. And rightly so.

mdkess 14y ago
How do you do that objectively though? I mean, consider Apple's bouncing lists patent. When you use it, it's very intuitive, and any moderately skilled software developer could implement it in an afternoon. So it seems obvious, but the question is then - why did nobody do it before? Touchscreen devices existed previously, so that seems to suggest that it is non-obvious. Synthesizing a drug is not hard or novel, but arriving at the conclusion that this is indeed the correct drug that is the reason that pharma patents exist. So the same could be said of bouncy lists. So how do you determine the obviousness of this, objectively? The most straightforward ways are prior art and to to consider claims from previous patents. It's mostly objective and is hard to argue against, as opposed to one patent examiner's opinion on obviousness. The problem with software patents is that the benefits of a 20 year monopoly far outweighs the benefit of having it released to the public - which is not true for all patents. If Apple couldn't patent the bouncing list, they'd still have bouncing lists, and it would still be an advantage to their devices, even if everyone else copied them. If you couldn't have a patent on a drug that was going to take $1 billion in costs to bring to market, yet would only cost pennies to synthesize, you wouldn't even bother trying. So the question is instead, how do you objectively determine which industries require patent protection, and which don't. For the rest of the industries, copyright and trademark laws are more than enough protection.
- tensor 14y ago
  Putting aside UI patents, if a patent is "non-obvious" is should not be the case that people routinely run afoul of the patent without the details of it being disclosed. However, this is precisely what is happening in the software industry. In fact, typical legal advice for engineers is to not read patents at all. And still, it is impossible to write any sort of complicated program without running a foul of numerous software patents. A truly innovative patent would be one which would be fairly unlikely to be rediscovered independently. How likely is it that a typical person skilled in the art would have come up with PageRank if the algorithm was not published? Another academic might have, but it would not be likely that an average programmer would. On the other hand, that linked list patent? That is not innovation. The idea of searching multiple databases from a single search box? Not innovative. Searching for and identifying entities like phone numbers in text? Not innovative.

mdkess 14y ago

How do you do that objectively though? I mean, consider Apple's bouncing lists patent. When you use it, it's very intuitive, and any moderately skilled software developer could implement it in an afternoon. So it seems obvious, but the question is then - why did nobody do it before? Touchscreen devices existed previously, so that seems to suggest that it is non-obvious. Synthesizing a drug is not hard or novel, but arriving at the conclusion that this is indeed the correct drug that is the reason that pharma patents exist. So the same could be said of bouncy lists. So how do you determine the obviousness of this, objectively? The most straightforward ways are prior art and to to consider claims from previous patents. It's mostly objective and is hard to argue against, as opposed to one patent examiner's opinion on obviousness. The problem with software patents is that the benefits of a 20 year monopoly far outweighs the benefit of having it released to the public - which is not true for all patents. If Apple couldn't patent the bouncing list, they'd still have bouncing lists, and it would still be an advantage to their devices, even if everyone else copied them. If you couldn't have a patent on a drug that was going to take $1 billion in costs to bring to market, yet would only cost pennies to synthesize, you wouldn't even bother trying. So the question is instead, how do you objectively determine which industries require patent protection, and which don't. For the rest of the industries, copyright and trademark laws are more than enough protection.

tensor 14y ago
Putting aside UI patents, if a patent is "non-obvious" is should not be the case that people routinely run afoul of the patent without the details of it being disclosed. However, this is precisely what is happening in the software industry. In fact, typical legal advice for engineers is to not read patents at all. And still, it is impossible to write any sort of complicated program without running a foul of numerous software patents. A truly innovative patent would be one which would be fairly unlikely to be rediscovered independently. How likely is it that a typical person skilled in the art would have come up with PageRank if the algorithm was not published? Another academic might have, but it would not be likely that an average programmer would. On the other hand, that linked list patent? That is not innovation. The idea of searching multiple databases from a single search box? Not innovative. Searching for and identifying entities like phone numbers in text? Not innovative.