[ScottBurson]

Yes, I think this is the essence of the problem: the PTO and the courts have a very hard time distinguishing a nonobvious invention from an easy problem that merely happens to have been solved for the first time (as far as the PTO can tell).

I have occasionally seen a software patent with an idea that was not obvious at least to me, but I haven't seen many of them. Most have been as you describe: once the requirements are understood, there is no difficulty designing a system to satisfy them. It's just that (again, as far as the PTO can tell) nobody has come across that particular set of requirements before.

I think that in order to litigate a patent, the patentee should be required to provide evidence that their invention was nonobvious. The PTO is poorly equipped and structured to do a good job filtering out obvious "inventions" (for example, examiners have no incentives to do so); and yet, as things stand, the courts defer to the PTO on this question. I think the rules should be changed so the court has to be persuaded of the nonobviousness of the patent before the suit can proceed. That would be a potentially adversarial proceeding itself, in that the defendant would be allowed to argue that the invention is obvious, but the primary burden of proof would be on the patentee.

One could argue that this would put on the court a job that should belong to the PTO, and that argument has some merit, but here's a counterargument. It's often hard to tell, when a patent application is filed, how much the potential patent will be worth. Delaying part of the effort involved in evaluating the patent until such a time that the patentee has actually decided to litigate makes some economic sense. More to the point, it is often easier to show nonobviousness once some time has passed. One of the Graham factors [0] that can be used as evidence of nonobviousness is commercial success of a product based on the invention. Such success can't have occurred yet at the time the patent application is filed.

The change I am proposing would constitute a massive shift in the balance of power between patentees and alleged infringers, and a lot of oxen would be gored; I'm well aware of that. A lot of companies would see the putative value of their patent portfolios drop precipitously. Against that, they would have to worry a lot less about being sued.

I'd be interested in your take on this, as you've been inside the system a lot more than I have.

[0] https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.#The_P...

[TheMagicHorsey]

How would one present evidence of non-obviousness? It seems very difficult once a solution is presented. Its a bit easier to prove that something was obvious at the time of invention. One sure sign is if there are many cases of independent invention.

I think therefore that one simple way to ameliorate some of the abuse in patents is to give defendants an independent invention defense. What I mean is, if you can prove that you had no access to the patent holders patent or idea, and that you came up with it independently, then, that should be taken as a factor showing that the solution may have been obvious. If additional companies similarly show that they also independently came up with the same solution, then that is additional strong evidence of obviousness that should make the finding of obviousness more likely.

Right now, independent invention is not a defense. And multiple independent invention isn't even considered evidence of obviousness.

As embarrassing as slide to unlock is for the US patent system, its actually not the more egregious case of obvious things being patented. If you look at what is being filed in social networking patents, database patents, and cloud computing, any person here on Hacker News would be shocked.

The problem is, the USPTO examiners are NOT shocked. Have you ever talked to one of them? The quality of their technical knowledge is EXTREMELY poor. EXTREMELY. The USPTO seems to have recruited third-rate PHDs and other "technical" folk from developing nations, and put them into examiner positions based on their degrees alone. I have seen many many office actions from USPTO examiners where it was obvious that the examiner understood absolutely nothing of the patent he was reading, so he just did a Google search on the key words in the abstract and pasted the paragraphs he found into a response. The office actions are not even coherent, much less effective.

Don't take my word for it. Do a search for a patent that has some technical phrase you are familiar with ... say Markov Chains. Then take the patent you find and go to the USPTO Public PAIR database. Pull up that patent application. Go into the record of documents for that patent and read the first office action that was sent by the USPTO for that patent ... I will bet you 10 to 1, the office action will be utter gibberish that makes no sense. I'm willing to give you those odds, because out of the hundreds of office actions I have seen, perhaps less than ten have made any sense ... where the examiner had any clue at all.

Programmers don't realize this basic problem.

Every patent lawyer understands it. And they are embarrassed by it. They are embarrassed because they are making tens of thousands of dollars writing oppositions to documents written by what are essentially technically retarded individuals. This is not a disputed fact. Go put some beers into a patent prosecution attorney, and let him start talking to you about office actions he has received from the USPTO.

These office actions usually don't get seen by the public. They only get surfaced in big litigations ... and when they are surfaced, all involved are deeply embarrassed. Why? Because both plaintiff's and defendant's attorneys don't want to come out and say that they are making a living in a system that is fundamentally broken at its very core.

What does it mean if the USPTO patent examiners don't actually do any examination worth a damn at all? Has the American public been made aware of this blatantly obvious and true fact? No. They continue to think that the USPTO is actually serving a useful examination function. That is a complete and utter lie. And its a lie out in the open. Just open up the prosecution history for any technical patent as I asked earlier. ANY TECHNICAL PATENT.

[ScottBurson]

The problem with the independent invention defense is, how can you ever prove you had not seen the patent? One could read a patent, then change terms, rearrange parts, etc. until it was not at all clear that one's own expression of the idea actually came from the patent. I realize an independent invention defense seems natural to us as engineers, since we independently (re-)invent things all the time, but I don't see how it would work as a matter of law.

And people wouldn't necessarily have to have read the actual patent in order to abuse such a defense -- they might just have seen the product that incorporates the invention.

As for how one would present evidence of non-obviousness, if you follow the link I gave, you'll see three kinds of evidence which can support such a claim, according to the Supreme Court: commercial success; long-felt but unsolved needs; and failure of others. I think what these all have in common is clear: you need to show that others have had an incentive to try to solve the same problem, but haven't done so. That would constitute evidence that the solution wasn't obvious.

> It[']s a bit easier to prove that something was obvious at the time of invention. One sure sign is if there are many cases of independent invention.

How would this work? If the independent inventions occurred before the patent application, they're already prior art; if they occur after, then once again, we can't know they were truly independent.

I already knew the examiners were pretty bad, though maybe I didn't realize quite how bad.

How did you get started in this kind of consulting?

[TheMagicHorsey]

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.

Also, its a get rich slow scheme.

[ScottBurson]

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.

[TheMagicHorsey]

It happens all the time. In fact, that's where all the valuable patent litigations happen.

[ScottBurson]

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.