There is an independent invention defense of sort in Copyright Law. A Copyright plaintiff actually has to prove that the defendant had access to the material and was inspired by it (or copied it).
BTW, substantial similarity acts as defacto evidence of copying in Copyright. So, you might claim you didn't copy Michael Jackson's Thriller because you were on a desert island and never heard it, but if your rendition is really similar to the original, then that similarity is itself proof sufficient that you are lying. Additional evidence isn't necessary.
In software things could work differently. I think one way the defense would be most aptly used is in cases like the notorious podcasting patent. There you could see literally hundreds of independently written podcasting style applications, where literally every one of the engineers writing podcast software were willing to testify that they'd never seen the podcast patent or heard of the company that wrote the patent. I think courts can take that as strong evidence of obviousness, as all of those engineers perjuring themselves is unlikely, and the simultaneous widespread invention of the same thing means its probably an inevitable and obvious advance.
I don't want to go into too much detail about how I started my current patent work, because this account is anonymous. I'll just say, though, in this business credentials mean everything and actual practical expertise means nothing. I have a law degree from a top ten law school in the US, in addition to an engineering degree from an Ivy league school, and over a decade of engineering experience at brand name US tech companies. My resume looks good. That's why I get work. It has nothing to do with my skills as an engineer. I know how to communicate technical ideas, read legal documents, and look confident in my advice to people for whom appearances matter.
Any bright engineer can learn to do what I do in less time than it would take to master something technical (like machine learning), but you'll need paper credentials to get in this business. That's why I don't recommend this line of work to people that prize capabilities over paper.
But that's exactly the difference between copyright and patent: copyright covers the expression of an idea, but patent covers the idea itself. J.K. Rowling can't sue me if I write a book that's just like Harry Potter except that the places, characters, and storyline are all different, and all that remains is that it's a book about kids growing up learning about magic at a weird school. On the other hand, if it were possible to patent such an idea, and Rowling had done so, then it wouldn't matter that I had changed all those things: the idea would still be there.
So for copyright, the absence of substantial similarity is a straightforward defense, but it couldn't work that way for patents.
I agree about the podcasting patent. There are a few cases where so many people have independently invented the thing that its obviousness is overwhelmingly clear. I don't know how often that happens, though.
Well, from your perspective it may happen frequently, because those are the cases you get called in on. That doesn't necessarily mean that these cases represent a large fraction of the obvious patents that have been issued and that we would like to see invalidated. There are an awful lot of those, as you yourself have pointed out.
Thank you for your comments, though. It has been interesting hearing about your experiences, and I think we agree on many points.
BTW, substantial similarity acts as defacto evidence of copying in Copyright. So, you might claim you didn't copy Michael Jackson's Thriller because you were on a desert island and never heard it, but if your rendition is really similar to the original, then that similarity is itself proof sufficient that you are lying. Additional evidence isn't necessary.
In software things could work differently. I think one way the defense would be most aptly used is in cases like the notorious podcasting patent. There you could see literally hundreds of independently written podcasting style applications, where literally every one of the engineers writing podcast software were willing to testify that they'd never seen the podcast patent or heard of the company that wrote the patent. I think courts can take that as strong evidence of obviousness, as all of those engineers perjuring themselves is unlikely, and the simultaneous widespread invention of the same thing means its probably an inevitable and obvious advance.
I don't want to go into too much detail about how I started my current patent work, because this account is anonymous. I'll just say, though, in this business credentials mean everything and actual practical expertise means nothing. I have a law degree from a top ten law school in the US, in addition to an engineering degree from an Ivy league school, and over a decade of engineering experience at brand name US tech companies. My resume looks good. That's why I get work. It has nothing to do with my skills as an engineer. I know how to communicate technical ideas, read legal documents, and look confident in my advice to people for whom appearances matter.
Any bright engineer can learn to do what I do in less time than it would take to master something technical (like machine learning), but you'll need paper credentials to get in this business. That's why I don't recommend this line of work to people that prize capabilities over paper.
Also, its a get rich slow scheme.