OTOH it does still preclude John from being presented with a problem and then doing someone quite ingenious to do a great solution that seems actually quite "novel", to learn that someone else did it years before.
But for patents, if you follow logical steps from a given problem then you shouldn't be granted a patent.
In fact the way patents should work is that the patent officer spends a week trying to solve said problem themselves. And only after that attempt, read the actual patent. If they're struck with, "Ahh... yes, good idea, wouldn't have thought of it mysefl" then its potentially patentable. But if the patent officer says, "Yeah, that was my second attempt." or "that's largely derivative of my general line of logic in my other attempts" then it shoudln't be patentable.
Does that really sound at all scalable (or even reasonable) to you?
I imagine that many of the proposals that move through the patent office are highly contextual and may be simple ideas wrapped up in daunting language. It seems reasonable that it would take far more than a week to even get your arms around some of the problems themselves, let alone the solutions.
Besides, if patent officers were such able critics, wouldn't they be more useful as engineers?
Basically the argument, which I find quite compelling on one level, is that truly obvious stuff is known and citable. Very simply novel inventions can seem obvious once they are presented to you. I found this a lot examining patents - they would often seem obvious but nonetheless be absent entirely from the prior art.
However, to answer some of the proposed solutions there is also the aspect of presentation of the invention to the public domain. That is, even if it were possible for an engineer ("the notional skilled man in the art") to create a close enough solution if they are set to work on a problem this does not provide a reason not to provide some form of patent protection.
The deal is that for disclosure of a workable, industrially applicable invention that a limited monopoly is granted. The monopoly does not only reward but also encourages. Whether others could solve a problem is not necessarily relevant to rewarding those who have addressed it and solved it. Do you see. You want to motivate progress in the relevant arts by rewarding those who solve problems in those arts by the sweat of their brow.
Re ability of patent officers: a judge can watch ice skating and tell you if the people fall over, if their toe-step is dramatic interpretation of the music or them tripping, if their Salchow is wobbly, if their outfits breech regulations, etc., but possibly barely ice skate themselves.
That said in the UK at least there is a good deal of art-specific expertise so much so that the patent office makes a substantial income hiring their examiners out to large companies to do "commercial searches". Mind you when we assessed international searches for the US ones were nearly always useless and had to be re-done (WO patents entering the national phase would sometimes have pre-existing examinations by foreign examiners, usually US or EPO).
>"more useful as engineers"
I don't think people stop being engineers because they become patent officers. That said they probably would be more use to the human race using their skills in a more directly constructive way but this assumes a lot about the world that just isn't going to happen. When there's no greed and everyone works for the greater good then we'll have no need for patent officers.
When a suit is filed, an engineer is given the problem and told to build clean-room implementations. If he gets it in under a month, it's obvious and overturned. If he gets it in a day, it's extremely obvious and the plaintiff is fined three times the asking damages. If he gets it in under an hour, thirty times.
This disincentivizes completely bogus patent claims, and should bring the total rate down to something manageable.
When the proposal is submitted, the engineer attempts the recreation. If he fails, the patent office pays him. If he succeeds, the attempted patenter pays for a month of his salary. If he succeeds in under a day, the patenter pays a year.
This gets up-front examination, but weakens the incentive to hire good engineers and doesn't guarantee to make trolling unprofitable.
Once something is patented, the idea is out there for others to hear about (not just because they can read the patent; the original inventors can now talk about it, too). And ideas that get out into the wild tend to spread.
On the other hand, after all these years of having patents on obvious things granted, it might be no bad thing to try throwing out some genuinely inventive patents instead for a change :-).
(My own preference: either do away with software patents completely, or substantially shorten their term. [EDITED to add: the latter probably only makes sense if you can greatly reduce the latency between initial filing and granting. Which would be a good thing anyway, for all patents.])
Then spend more than a week on it. I didn't use a week as "cap", but rather a starting point. If it takes a month, sure then spend a month. You'll get no arguments from me. Especially since patents regularly take 5+ years to get approved.
A year has 52 weeks (plus one or two days), if 2 of these weeks are vacations, 50 weeks remain. Therefore 1000 / 50 = 20.
The sheer volume makes it clear that the vast majority of patent applications are for trivial stuff. The system is broken, it's that simple.
Or think of it this way, a mobile phone: it could have novel programming, novel chips, novel screen design, hinge, case plastic, button return springs that last longer, easier to use touchscreen, stronger glass, more flexible, brighter, etc., any of these things might give it the market advantage. How many other things do you use each day, each of them could potentially be improved and that improvement be registered in a patent.
The parent spoke of applications for patents anyway. Granted patents in the US are apparently about 40% of this.
> In fact the way patents should work is that the patent officer spends a week trying to solve said problem themselves.
Does that really sound at all scalable (or even reasonable) to you?
So clearly you were saying that a week is too much time to spend on a patent. OK.
But in a week you can't understand the problem, much less a solution. So you seem to be saying that having a system where examiners approve patents they don't understand is preferred. I say that if the examiner can't understand the solution, much less the problem, then the patent is rejected. This will really get people to focus on writing clear patents, rather than the legalese that passes for a patent today.
But lets get to numbers. There are not 500 examiners. There are more than 6,000. So at one week per patent it's now less than two years per patent. That's actually about on par with the time today. That's extremely reaonable. And I'd argue that making patents more expensive, with less protection time, you'd reduce the number of SW patents, and thus probably can turnaround SW patents more quickly.
And to me that is one of the many problems with (software) patents: it relies on an inherently biased, subjective process to determine whether this objective, rigorous piece of thought is worthy of a monopoly.
And also recall with patents you are guaranteed another appeal to a different body if ever sued, the courts, where you can invalidate a patent. And if MS wins the i4i case the burden of proof will be even lower. And note, there is legislation going through congress right now to make it harder to win a suit, and also expands patent reexamination.
My point? The patent examiner is an important first step, but a patent that clearly has no legs should be defeatable -- if not now, in the near future.
The conclusion that you should be reaching is software patents are simply not a viable mechanism, period. In other words, even if you like the idea of patents in theory, in practice they do not work because we will never have enough patent examiners with the necessary expertise much less time to make valid decisions on patent applications.
Not so. I'm not defending the current system, just trying to demonstrate that your suggestion isn't feasible.
> There are not 500 examiners. There are more than 6,000.
Edit: found the data on Wikipedia: http://en.wikipedia.org/wiki/United_States_Patent_and_Tradem...
The real problem with software patents is not that the rules (including non-obviousness constraint) are flawed, but rather that the execution of those rules is flawed. Fix the right thing please.