> In the end the real issue is new fields spend their first ~50 years in patent hell where the most obvious things are easily patented I think this is the most

> In the end the real issue is new fields spend their first ~50 years in patent hell where the most obvious things are easily patented I think this is the most important part of your comment. How well patents work for drugs is a secondary question. I would put it this way: the PTO has no good way of distinguishing mere novelty from nonobviousness. In a mature field, the two probably correlate pretty well: everything obvious will have been thought of. But in a young field, they don't. Specifically, when a new technology opens up new applications, those applications are often novel enough to be considered patentable, even when they are obvious to anyone who has the need that the application addresses. When new technologies are extremely general, like personal computers and the Internet, this problem is at its worst: there are very large numbers of such new applications. And so we get lots of patent applications of the form "do X on a computer" or "do X over the Internet", and because those ideas are novel, as far as the PTO can tell, it assumes they are nonobvious. The European patent court, as I understand, tries to address this problem by requiring that a patented invention demonstrate a "novel technical effect". I think this is a good idea: it attempts to distinguish inventions that are truly new technology from those that are simply novel applications of technology, the implication being that the latter are more likely to be obvious, even though novel. In fact, I think this is a much better approach than the one the US Supreme Court took in the recent Alice decision [0], in which they rejected a patent for being about an "abstract idea". Both approaches require the PTO to make a judgment, but the question of whether an invention is an "abstract idea" seems to me much harder to pin down (what's a non-abstract idea?) than that of whether it contributes to technology or merely uses technology. (Though I wouldn't say the latter question is always going to be trivial.) Another thing I would like to see is heavier and more consistent reliance on what are called the "Graham factors" [1], particularly those that show objective evidence of nonobviousness: commercial success; long-felt but unsolved needs; and failure of others to solve the same problem. I would go so far as to say that the presumption, particularly in a young field, should be that an invention, notwithstanding its novelty, should be considered to be obvious unless the applicant can demonstrate some objective evidence that it isn't. [0] http://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_International http://en.wikipedia.org/wiki/Alice_Corp._v._CLS_Bank_Interna... [1] http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousness#Graham_factors http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousn...