[jjlustig]

HN loves to focus on only one of the normative goals of patents - to incentivize innovation. But there is another almost equally important goal of the patent system - to incentivize disclosure. While I agree that the use of vague language in patent publications perverts the public disclosure goal, other forms of public disclosure may arise from it. For example, companies can openly talk about inventions, whether it be with the public, potential business partners, or suppliers, without fear out misappropriation.

I am not a fan of a bright line rule that prohibits software patents. Software is so explicitly tied with most inventions these days that it would be hard to tease out what qualifies for patent eligibility. Is a novel design of a robot arm that contains some software elements patentable? Instead of a bright line rule, I’d prefer to see a strengthening of 112 - written description / enablement requirements and 103 - obviousness requirements. Imagine if 112 required software patent holders to provide a hard copy of the implementation code (or at least a more detailed description of the invention). And as to 103, the policing function of obviousness needs to be ramped up. The USPTO should invest in better prior art searching techniques and hire Examiners that care about enforcement. Currently, the incentives of USPTO Examiner's misalign with the goals of the patent system, as Examiners are evaluated via a point mechanism that rewards churning out patents rather than tightly policing them.

Also, when people on HN argue about the "patent troll" problem, the real issue seems not to be with patents themselves, but with how the U.S. litigation system can be weaponized to extract fees from using patents. Thus, I think the key issue is trying to figure out low cost and effective ways to litigate patent issues. IPRs have helped, but perhaps we can develop other ways for companies to cheaply dispose of garbage patent suits that have no merit.