[ScottBurson]

> what you've done here is nice, but your bringing it forward simply doesn't provide enough net societal benefit to warrant legally prohibiting your competitors from copying your work

The interesting thing to me about this is that it is fundamentally not a legal judgment, but an economic one. I think patent examiners should be required to have some background in economics along with whatever legal training they get (and, of course, their subject matter expertise). Similarly for judges deciding patent cases.

Anyway, as I've posted here on HN occasionally, I think the problem of figuring out at patent application time whether the invention is obvious or not is too hard, particularly for a junior civil servant. Instead I propose that the first step in an infringement proceeding should be for the patentee to supply objective evidence, along the lines of the Graham factors, of nonobviousness. The burden of proof should be on the patentee, and the court should evaluate this evidence on its own, without deferring to the examiner. What do you think of this idea?

[dctoedt]

> The interesting thing to me about this is that it is fundamentally not a legal judgment, but an economic one.

It's a mix of both. Unfortunately, too many patent lawyers seem to subscribe to the natural-rights theory of protecting inventions: If you invented something, why then just naturally you should be able to prevent others from making, using, or selling it without your consent — as though conceiving and writing up the idea was the most important part of bringing the benefit of the idea to the public. Too often, the other facts involved in effective innovation seem to take a back seat.

(In the 1980s and 1990s, at meetings of the ABA Section of IP Law, I don't know how many times I'd hear Don Banner [0], a former chair of the section and former commissioner of Patents and Trademarks, hold forth on the importance of protecting "the little man from Little Rock," i.e., individual inventors.)

> The burden of proof should be on the patentee, and the court should evaluate this evidence on its own, without deferring to the examiner. What do you think of this idea

I think that would be the sounder public policy — keeping in mind of course that the patent examiner is a neutral expert.

[0] https://en.wikipedia.org/wiki/Donald_W._Banner

[ScottBurson]

> I think that would be the sounder public policy

Excellent! I think you're the first person here who has agreed with me :-) It seems like a subtle tweak, perhaps, to many people, but I think it would make a huge difference. Rayiner thinks it's unnecessary after Alice, but I'm not convinced; subject matter is a different aspect of the problem. (Also, though I welcome the effects that Alice is having, I'm not sure I think it's correct. The problem is that word "abstract". As software engineers, we know that abstraction is a hierarchy, and the abstract/concrete distinction is not absolute but is relative to the level within that hierarchy that one is speaking at. Any idea, in short, can be argued to be abstract.)

> keeping in mind of course that the patent examiner is a neutral expert

A neutral expert, but also one whose incentive structure encourages them to close cases. They don't get bonuses for fighting off obstinate applicants with bad patents.