[tptacek]

Most ideas are obvious in retrospect. Why was DataTreasury the first to implement this system? Seriously engage with this question. I had just started working in the industry in 1994, when this story started. Why didn't I create a B2B electronic transaction clearing system?

I'm not necessarily sticking up for this patent, and I tend to believe the patent system is completely fouled up for software companies, but we can do better at analyzing the issues than just automatically saying "that's brain dead obvious".

[te_platt]

I agree that most ideas are obvious in retrospect. Still, In my experience most ideas are obvious before hand as well. So what is a good way to define obvious or novel as applied to patents? I have two ideas.

1. Boggle rule. In the game Boggle when two players come up with the same word neither get credit. If from a given time of filing a patent someone else files a similar patent both are rejected.

2. Virgin engineer rule. Take a group of people competent in the field of the proposed patent but without any knowledge of the patent. Give them the problem the patent purports to address. If in a single day their solutions substantially match the proposed patent, reject the patent.

[justinsb]

I think this is a great discussion; much more productive than the normal religious arguments.

The first is reasonably sound. A potentially very interesting idea is to allow anything filed within 3 months of filing to be considered "prior art", although I'm not sure this would make a huge difference in practice.

The second would be very labor intensive if done in practice. Doing this as a thought-experiment is actually how non-obviousness is determined by patent examiners. If an engineer of "ordinary skill in the art" would think the approach obvious given the prior art, then the patent is deemed obvious. I don't know if it's ever been tried to locate 'virgin engineers' to demonstrate that a patent is obvious.

So the second idea is how the system works, although the examiner is supposed to be the group of engineers.

[anamax]

> Give them the problem the patent purports to address.

Recognising the problem is often the innovation.

As Henry Ford said, "If I'd asked customers, they'd have said that they wanted a faster horse."

[ScottBurson]

> Recognising the problem is often the innovation.

It can be an innovation, but it can be very hard for the PTO to tell just how much of an innovation it is. What happens a lot, I believe, is that the emergence of a new technology creates new possibilities, but the actual application of the technology to those possibilities raises certain problems that have to be solved. The existence of those problems is not obvious in advance of the new technology, but once people have it in front of them and start to play around with it, it starts to become more and more likely that someone will think of those problems. The evidence for this is the not infrequent occurrence of simultaneous or near-simultaneous invention.

So while recognizing the problem might be an innovation, it might be an almost inevitable innovation. Furthermore, much of the credit might arguably belong to the enabling technology that made a solution possible, and to the industry that developed and commercialized that technology.

To make an extreme simile, one could say the Internet is like the technology to allow us to colonize the moon, and so many of these software patents are like people booking trips to the moon, arriving, and then staking a land claim. It wasn't very much their own intrepid exploration that made it possible for them to stake that claim; there might have been a little of that, but mostly they're dependent on the massive effort, by an entire industry, that made it possible for them to get there in the first place. So the policy question is, have they really contributed so much that we should reward them with that land claim?

[anamax]

> So while recognizing the problem might be an innovation, it might be an almost inevitable innovation.

Or, it might not.

> Furthermore, much of the credit might arguably belong to the enabling technology that made a solution possible, and to the industry that developed and commercialized that technology.

So? They're free to recognize the capabilities and invent.

However, that's a red herring because you also don't want them to be able to get patents for recognizing the possibilites.

I get that you don't like "recognize the problem" inventions. Howver, can you argue against them on the basis of "it was inevitable" or "someone else should have gotten the credit"?

Which reminds me - can you name three inventions that weren't inevitable and how you know? I'm trying to figure out if your argument against "recognize the problem" patents applies more generally.

[chc]

Why was DataTreasury the first to implement this system? Probably because technology was just getting to the point where their idea was feasible, and megacorp banks do not tend to be very fast-moving. I mean, look at the state of banks today — they're still 5–10 years behind the state of the art.

[tptacek]

But DataTreasury wasn't a bank.

Was there a flood of overlapping patents for similar technology at the same time?

I brought up my entry into the industry in 1994 because '94 wasn't a slow year for tech at all. It was about a year before the bubble started blowing up, but there were lots and lots of small companies doing software.