[ysapir]

While the patent system seems broken as far as software patents go, some of EFF's corrections (in https://defendinnovation.org/) are problematic. This includes "Avoid liability if they arrive independently" (what happens if the general news about a company doing X profitably is enough to let you work out an algorithm independently, the company doing X still wants to protect the effort it spent to figure out X when it wasn't clear it would be profitable) or "can't collect millions if the patent represented a tiny fraction of the product" (what if it is a small piece of code in millions of lines, but without it there would be no product?).

Also, the patent system should be modified to allow some way to handle customer discovery. Something like a single provisional filing fee allows you to file many iterative documents repetitively (with MVP source code perhaps) and those later provide a basis for priority date if proof is supplied they were customer-tested.

[vilya]

If just knowing that it's possible is all it takes to be able to independently reproduce an invention, then it shouldn't have been patentable in the first place. That's pretty close to being the exact definition of the "non-obviousness" criteria the USPTO is supposed to apply.

[ysapir]

No I don't think that's exact.

If you need to know that it's possible in order to make it, then it is non-obvious.

Maybe the algorithm is obvious, ie, to do X you need to do steps 1, 2, and 3, but X itself, the basic functional creation that employs the algorithm, is not obvious.

Swipe-to-unlock, the basic algorithm, how to implement it is pretty clear. But matching and researching which gesture works with which functionality, to the degrees customers find it natural took effort and time, and it produced a creation that was not obvious before that research.

Besides, if this is already part of the current rules, why do we need to amend the rules for it? Just enforce the rules better.

[vilya]

The wikipedia page about the non-obviousness test [1] says:

"The purpose of the inventive step, or non-obviousness, requirement is to avoid granting patents for inventions which only follow from "normal product design and development", ..."

What you described for swipe-to-unlock is very much the normal product design and development process, so doesn't (well, _shouldn't_) qualify it for patent protection.

And yes, I agree: the rules DO need to be enforced better.

[1] http://en.wikipedia.org/wiki/Inventive_step_and_non-obviousn...

[ysapir]

That wikipedia page quotes an article by John Barton that argues that the criteria for obviousness should be restricted. The particular quote you cite is from the section where Barton explains his proposed criteria, rather than the current criteria. The full sentence reads: "Only research beyond that done as part of normal product design and development should be rewarded with a patent. Routine redesign should not be enough, for there is no need for monopolies as an incentive for such research." [1] The word _should_ is key, it is what Barton thinks _should_ be the case, even if it isn't today.

In fact, the law as described by Barton in the earlier section of his paper shows that the non-obviousness criterion was deliberately weakened over time, specifically when the Patent Act was passed in 1952 that eliminated a requirement for a "flash of creative genius."

Anyway, I am not a law expert. I am an entrepreneur. My interest is to be able to invent without fear that after I invented and researched and showed that some form of product was viable, some large company (Google, Microsoft, Apple, etc) or a competitor or any other group would then replicate it, claiming to have arrived at the product independently. The bottom line is that it wouldn't foster innovation, it would hinder it. I would have no incentive under the patent system to go to investors and secure funds to do research if in the small chance that the research is fruitful, I will not be able to protect it.

[1] Draft version of Barton's article: http://emlab.berkeley.edu/users/bhhall/ipconf/Barton901.pdf

[icebraining]

Swipe-to-unlock is an obvious transfer of a well-known physical concept (sliding the keyboard to unlock, as many Nokia phones had) to the touch screen.

It's a great example of another big problem with software patents - the idea that adding "... on a computer" makes it somehow brand new.

[noptic]

Simple sollution: Only grant patents on real sollutions. If you can solve the same problem in another way it is a independent work. Do we realy want a world with 1 browser 1 OS and 1 pragramming alnguage?

[icebraining]

Patents on real solutions are called "copyright".