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Yes, I think this is the essence of the problem with software patents in particular. The technological landscape is changing so fast that new opportunities --

Yes, I think this is the essence of the problem with software patents in particular. The technological landscape is changing so fast that new opportunities -- new problems -- emerge daily. An awful lot of software patents concern solutions to these new problems, but where the solution itself is easily arrived at given the problem. To me, the key problems with the notion of obviousness written into current patent law are that (a) it is mostly subjective and (b) the burden of proof is on the PTO, if the examiner feels the claimed invention is obvious. I think the burden should be on the applicant to provide objective evidence that the solution is not obvious. While I suppose this could take various forms, it is hard to see how any such evidence could exist when the problem addressed by the claimed invention is itself novel. If the problem is not yet widely recognized as a problem, there has been little opportunity for anyone else to try to solve it and fail. To show nonobviousness under my proposal, the applicant would have to show that the problem has been known or at the very least that it has been a problem, even if not identified as such.

b1daly 14y ago
In my reading of the Reddit thread I did not take away that patent examiner just gets to decide that something seems obvious. Instead, the reasoning seems to be that if no prior art for an invention exists, it could therefor not have been obvious. This seems sort of sensible as it is very hard to determine if a truly novel invention is obvious. Hindsight bias being a core part of the problem. So they seem to have moved away from a more metaphysical problem of determining obviousness to just trying to determine if an invention of novel, which at least has some grounding in objective reality.
echaozh 14y ago
I think putting the burden onto the applicant makes a lot of sense. The applicant is the one with the more information concerning the patent, why shouldn't he explain the obviousness first? The applicant should talk more about the decisions made during the invention process, and tell us about why, in addition to the how. If there are more obvious alternatives which are all deadends, the working solution may be considered not so obvious.

b1daly 14y ago

In my reading of the Reddit thread I did not take away that patent examiner just gets to decide that something seems obvious. Instead, the reasoning seems to be that if no prior art for an invention exists, it could therefor not have been obvious. This seems sort of sensible as it is very hard to determine if a truly novel invention is obvious. Hindsight bias being a core part of the problem. So they seem to have moved away from a more metaphysical problem of determining obviousness to just trying to determine if an invention of novel, which at least has some grounding in objective reality.

echaozh 14y ago

I think putting the burden onto the applicant makes a lot of sense. The applicant is the one with the more information concerning the patent, why shouldn't he explain the obviousness first? The applicant should talk more about the decisions made during the invention process, and tell us about why, in addition to the how. If there are more obvious alternatives which are all deadends, the working solution may be considered not so obvious.