EFF taking on software patent reform

I think this is a good set of reforms to investigate, but I think a real problem is simply the PTO issuing bad patents, a large percentage in the realm of software, for the past decade or so. By "bad" I mean failing a basic novelty/obviousness analysis.

I think it's more of an issue in software because software developers are essentially producing tens of "inventions" a day, every day, any of which are potentially infringing due to poor PTO operation. Whereas in something like chemical engineering a patent might affect maybe a few hundred other well-capitalized firms at a single point in their process, in software for any given app/developer potentially multiple patents are implicated in the course of a normal day's work.

A lot of patent trolls seem to be exploiting "we got here first nya nya" patents. That is, they patent solutions to problems that the market has not deemed significant enough to solve yet (like in app purchasing, before the iphone). When the market does move and encounters these problems, the straightforward solution(s) are developed, and then in swoops the patent troll.

The PTO just needs to become more sensitive to the unique industry that is software development: the high natural rate of invention, the high likelihood for multiple independent similar solutions to problems, the fact that a problem hasn't been solved yet doesnt mean the first submitted solution should nor can be patented, etc.

I think if a patent holder can show "but for my solution, you never would have solved this problem in a reasonably efficient manner" then sure, let's protect his IP. Determining when that condition is true is obviously difficult, but the current PTO strategy of giving the benefit of the doubt to the patent applicant has proven a bad bet.

That's a very good point, but recall that the standard is the hypothetical person who is presumed to have known the relevant art at the time of the invention. From KSR, we know that it's this person who's the baseline for determining which, if any, inferences or creative steps are obvious.

If a person NOT falling within this definition were to independently arrive at an invention and could have arrived at the same invention prior to the issuance of that invention's patent, then there's an issue. KSR states: "a person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." It follows that a hyper-creative, one-of-a-kind person who proves that he or she independently arrived at the invention would not be this hypothetical person. Although obvious to a genius in the art, it was non-obvious to a person having ordinary skill in the art. That's where I disagree with your reasoning.

EDIT: This is not to say that the genius in the art should be out-of-luck. He or she should be entitled to continue practicing the invention, but the patent itself shouldn't be invalidated. This should be evaluated on a case-by-case basis and treated as an exception to the general rule.

I don't think this provision will work. In practice software developers would then be required to keep the equivalent of lab notebooks and write down everything they do so if there is a lawsuit it can be proved that the invention is independent. While developers are already forbidden by most companies from looking at patents so as to prevent claims of willful infringement I can see legal departments forbidding software from reading papers and using much of the internet so that in case of a lawsuit it can be proved that a developer truly arrived at a solution independently.

Now the novelty claim is a somewhat separate issue. I don't have a good solution to this and there is a lot of ambiguity that arrises here.

It seems to me limiting the duration of a patent is the best solution. There is some precedent for this with the adjustment of how time for pharma patents are measured.

Copyright protects software, patents protect designs.

For some types of software, say operating systems, the hard work is writing all the lines of code. No device driver is ground breaking, but all those devices have to have device drivers and someone has to write them. The product you end up selling is those lines of code. Copyright protects those specific lines of code you wrote.

For other types of software, the hard part is figuring out how the software should work. That's where all the research dollars and engineer time gets spent. The actual lines of code are often an afterthought. If someone saw the code, they could easily figure out how it works and write an independent implementation. They can do that because writing the lines of code is the easy part. Copyright only protects the lines of code, so it can't help here. That's where patents come in.

In both cases, the law facilitates a division of labor. Copyright lets one company write an operating system, and sell it to others. Copyright creates and protects the subject matter of that transaction. Patents let one company design an algorithm, and sell it to others. Patent law creates and protects the subject matter of that transaction.

Now, I don't think the law should be concerned with protecting particular business models. However, it should be concerned with facilitating the division of labor. Indeed, that's one of the key purposes of property law. And that's why I think software patents have to exist in some form. Because I think it's good to be able to separate the process of design from the process of implementation, and without being able to protect design you can't do that.

I should point out that ARM is a very good example of this design/implementation separation. What do you think ARM uses to protect its designs?

Most drug researchers I have talked to have been in support of drug patents and only have issue with DNA related patents. I think the real issue is patents work best for well developed fields, and tend to have issues when things start moving quickly.