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Comment by stcredzero | Hacker News Reader

As a devil's advocate, I'll ask, would software patents be as bad if:

    1) The Patent Office gave proper attention to prior art
    2) The Patent Office implementation of "obvious" was sane?

I'll posit that, given these two stipulations, most of the bad in software patents wouldn't be with us.

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That would help, of course, but what about the situation where A works hard to solve a difficult problem and puts out a product, only to find out later that B had already patented that solution? If A's work was independent of B's, why should B own it? Especially in the egregious and common subcase where B never actually produced anything other than a patent.

I'd argue that what you propose is covered by a sane approach to "obviousness."

So you can defeat a patent by claiming you invented it independently later?

... how would that work?

You'd have to prove that you did formulate it independently yourself. There couldn't be other prior art. If your own inventor's journal revealed a large amount of work, that would show the original patent was indeed valid. If you could prove that you did invent it yourself, and that it wasn't that big a deal, the patent should fall.

So to win in your case, you'd have to tread a tightrope between "not enough evidence to show independent origin" and "the thing is obviously substantive enough to warrant a patent."

Most likely, the thing actually is obvious and there would be other prior art, which the Patent Office currently doesn't pay attention to.

It's not. Consider the calculus: invented almost simultaneously by two brilliant mathematicians (Leibniz and Netwon).

For a more recent example, consider NP completeness, proved completely independently by Stephen Cook and Leonid Levin.

Or even reinventions made disparate by time: the Cooley-Tukey FFT was first formulated by Gauss in 1805.

If these inventions are "obvious," then all inventions are obvious. The truth, not widely acknowledged, is that most inventions are as much a product of the environment of the inventor as the inventor themselves. They're not smarter and they're not unique. Patents should not prohibit coincidental parallel invention, only reverse engineering.

Patents should not prohibit coincidental parallel invention, only reverse engineering.

Well put. That's exactly the intuition I was trying to express.

"would software patents be as bad if"

You've chosen difficult wording here. When you ask if things would be so bad if we lessened their badness the answer is obviously no -- things would be incrementally better if made incrementally better. But this is no more than a tautology. Software patents are bad, in any form. They can be made not-quite-so-bad, but they will always be harmful to the intellectual development of society.

At the very least you'd also need

    3) Software patents expire after three years instead of twenty

which as far as I know would be a harder change to make than abolishing software patents completely.

Yes, but even if those two stipulations were sufficient, neither seem to be possible with software.

Please elaborate. Most serious software development uses revision control, which documents dates. Many web app UIs are documented by web crawlers.

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