Ordinary Skill in the Art: Jeffrey D. Ullman on Software Patents

The Supreme Court took a major step forward in 2007 by reducing the power of the teaching/suggestion/motivation test to prove non-obviousness. See http://en.wikipedia.org/wiki/KSR_v._Teleflex

I find it interesting that the reason for YCombinator's existence belies the fundamental problem with software patents: the ever-diminishing barriers to entry.

I understand the problem that programmers have with software patents, but I also still see a great deal of value in the patent system (though for full disclosure, patents pay my bills).

Many people point the finger at the pharmaceutical industry as the big, bad bully of the patent system. Personally, I use it as my token example that the patent system is a positive by comparing the barriers to entry in developing new drugs (finding a safe, effective formula and performing clinical trials) to the relative ease of copying drugs (I'm not a chemist, but I'm pretty sure this is easy).

In this case, the alternative to patent protection for drug companies would be to rely entirely on the government to supply money for drug research and manufacturing. However, this leaves us to the whims of politics to determine what we need instead of letting a free market work. I suspect that there are plenty of Viagra fans out there that won't complain about the high prices of seemingly unnecessary drugs. I'm by no means saying that the situation with drug companies is good or that they can stand on moral high ground, but I do believe (unquantifiable opinion) that they have been a net plus on society because of patent protection.

The last thing I've been thinking about is that there is a variable that we can consider. Patents grant the patentee 20 years of the right to exclude others from making and selling the claimed invention. The date is certainly arbitrary, and was set at a time when the markets reacted more slowly to innovation and the rate of the advancement of technology was slower. Could it been time to shorten the patent term in order to free up the market?

An idea for testing "obviousness" that I find "obvious" but haven't seen suggested elsewhere: require patents to include a "problem statement" that motivated the invention and sets requirements for a solution.

If the patent's obviousness then gets called into question, find a small panel (3-5) of 'average' software designers, unfamiliar with the patent (perhaps new graduates?) and show them the problem statement. If they come up with an equivalent or better solution in a meager amount of time, the 'invention' didn't add a lot of innovation/value.