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You're missing a critical difference. Patents are supposed to be "unobvious". A normal person just working in their shop should not just accidentally stumble across a patented thing, because by definition the patented thing should not be obvious to one skilled in the art.

Programmers on the other hand can indeed pop open an editor, spend a few minutes with Ruby on Rails implementing "a standard business procedure, but on the Internet!", and violate a patent. Or multiple patents. In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable.

An amazing number of patents that actually are being litigated really are "X, but on a computer!" or some variant thereof ("X, but on a network device!" is one the company I work for has gotten hit with). I'm not exaggerating, for all the verbiage and diagrams this really is a reasonable summary of many of them.

Your metaphor fails, because what is not a realistic risk for people working in shops or labs is a perfectly reasonable risk for a hobby programmer, let alone a pro.

Perhaps programmers are overreacting because of all the bad ones and there is a core of goodness deep down in there, but I'm willing to find out the hard way.




the patented thing should not be obvious to one skilled in the art

It's a big world and there are a lot of smart people in it. History is full of examples of multiple people independently inventing/discovering the same thing.

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And those things aren't supposed to be patentable. How you get from "not supposed to be patentable" to "does not exist" is beyond me.

May I also observe it isn't me making a normative claim that such things that are easily re-constructed by anyone should not be patented. It is descriptive, right in the legal definition of patent; it should be not obvious to one skilled in the art. Again, the very fact such a clause is necessary is evidence that there is a set of things obvious to one skilled in the art that exists, or why bring it up?

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Calculus and RSA -- two things that I think most of us would agree are "non-obvious" and were invented independently.. and may I add that the documented independent inventions were generally with a few years of each other? The evidence suggests that despite modern romantic notions of creative inspiration springing from individual genius, invention usually owes a lot to societal need and the current intellectual milieu.

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That's stretching it a bit. Just because more than one person hits upon something doesn't mean it's obvious; and as we know, it's much easier to understand a working instance of something than to discover/invent it.

So we need something to get around the problem of 'see new thing - figure it out - declare it obvious - sue to overturn patent'. Maybe the proposed first-to-file requirement will help that by taking the patent office out of the history-investigation business and just acting as a recording service, letting the parties fight out their dispute in court; I hope so. But it's hard to come up with some catch-all definition of what constitutes 'obviousness' because that will always be open to both honest and mercenary dispute.

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I'm not sure what you mean. Did you really intend to reply to me?

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> You're missing a critical difference. Patents are supposed to be "unobvious". A normal person just working in their shop should not just accidentally stumble across a patented thing, because by definition the patented thing should not be obvious to one skilled in the art.

"should" is the problem with that argument. Just as "all bugs are shallow to the right eyes", all machines are obvious to a fair number of people.

> In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable.

No, that's not "proof positive" of anything, any more than AG Bell's race to the patent office "proves" that telephony was "obvious".

> Perhaps programmers are overreacting

because the intertubes provide a great forum for overreacting. After all, overracting and porn are internet's the dominant uses.

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" In fact, the very fact that we have patent trolls that can run around and sue business after business after business for the same patent, while the businesses have no evidence that shows they have communicated with each other about the patented subject, ought to be proof positive that the patent is obvious and shouldn't be patentable."

Whether the person suing is or isn't a patent troll is irrelevant to your argument. You are basically arguing that if lots of people have done something without colluding it must be obvious. Not so.

I recommend this piece on hindsight bias. It is an extremely well documented fact that things rapidly become obvious after the fact.

http://en.wikipedia.org/wiki/Hindsight_bias

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The problem is that we are on a slippery-slope either way you cut it.

Begin with field "Foo". Originally, a Foo-ist researched the creation of an improved Foo-er after twenty years of painstaking manual research and patented said device. All well and good and the situation "had nothing to do with computers" originally (hah!).

But then, someone else creates a "numerically controlled foo-ing maching" - an NCF. With an NCF hooked-up to a conventional PC, proper software and a careful look at the improved fooer, you can duplicate the twenty years of painstaking manual research. You've "stolen" the patent as fully as if you duplicated the original machine but your "theft" is entirely in terms of software. And it can very subtle: It might be algorithm is obvious but the constants used took twenty years of research to discover/optimize (I've done scientific programming where discovering the optimality of a simple number was our achievement for the week).

Note the "scare quote" here. I use steal/theft advisedly.

The situation of a numerically controlled machines basically cries out that you must either abolish all patents or make valiant effort to extend patents somehow to software. And while I like the idea of abolishing all patents, I also know that all existing patents together are a huge mass of value and abolish the patent system would entail a huge shock to the economic system and the professional/scientific world and thus a large number of power entities stand against either abolish patents and by extension abolishing software patents since by the arguments above, these amount to the same thing.

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