[Natsu]

> Right, but what I'm saying is, that is not a good measure of the value of an invention,

The problem is that you're merely asserting that, rather than arguing it and going back to point out the legal standard of obviousness and it's control against hindsight bias, which I have already acknowledged. Patent publication was supposed to expand the prior art. If the invention is so trivial it can be figured out by knowing what it does (and not by what mechanism), then merely using/selling it is enough to inform society and I don't see why it's useful to society to grant protection to that nonsense. It's very useful to patent holders and patent lawyers mind, but it has been made very clear of late that their interests are adverse to the rest of ours and the whole thing is in need of fundamental rebalancing, rather than minor tweaks.

The thing is, I simply don't care about the legal standard of obviousness. I understand how it works and disagree that the outcomes it produces are useful to society. So I'm advocating a new standard of triviality. No, I doubt that patent lawyers would like that, as it overturns quite a lot of apple carts.

[throwawaykf03]

I'm trying not to "merely assert that" by giving examples supporting my point :-) I'm mentioning the legal standard just to point out that they have come to the same conclusion, and the standards weren't set by patent holders or patent lawyers, but by the very founders of the constitution. If you consider the age they were drafted, it makes perfect sense because back then all inventions were physical, and one could figure out things just by looking at it.

For instance, until the Wright brothers built their flier, controlled flight was deemed impossible after decades of failed and fatal attempts. But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].

Also it's not just the obviousness of the invention that's at play, it's the obviousness of the problem. The solution may be trivial, but the problem may not even be encountered without exploring new boundaries (think Apple and touchscreens). Sometimes the problem is right there in front of everybody's eyes and yet nobody notices it (think Flash of Insight).

In addition, you would be surprised by how many incredibly complex problems are solved by "trivial" solutions which nonetheless take years of effort to arrive at. One example I am aware of is digital and wireless communications methods: most of those patents appear trivial. But the mathematics that goes into proving that they actually work and work well span pages.

However, if you change the standard to that of non-triviality, it will reduce the incentives for improvement, and proportionally, the rate of innovation, in areas where copying would be trivial. This is not hypothetical [3].

If you think we don't need incentives for innovation in the "trivial" areas of technology, why did we need Apple to show us how to do touchscreen UIs right when companies like Nokia had developed touchscreen smartphones decades before?

Changing to a standard of triviality will instead focus efforts on areas where inventions cannot be reverse-engineered easily, and those already don't need patent protection because trade secret is enough for those (again, see [3]). Think of Google's search algorithms and distributed systems infrastructure. How is hoarding of valuable technology behind the walls of data centers conducive to diffusion of knowledge and the progress of "useful arts"?

1. Before you say "and look how it held up the aviation industry!", I encourage you to read this paper [2] that busts that myth.

2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355673

3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930243 - paper studying historical rates of innovation in countries with and without patents. It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.

[Natsu]

> I'm trying not to "merely assert that" by giving examples supporting my point :-)

I do appreciate that you've come back with more now.

> But anyone who simply saw the mechanism they rigged could re-implement it for themselves! The decades of work before it make it amply clear it was not obvious [1].

Oddly enough, your own paper describes quite a few features of that Wright patent not immediately apparent, but it doesn't matter, as you've missed one point about the standard I articulated. If you recall, my standard was for people who had not seen it to be able to make it simply by being told what it does. If anything, the history of flying would support the notion that "make a thing that flies" was non-trivial at the time.

> But the mathematics that goes into proving that they actually work and work well span pages.

Math is not patentable subject matter... unless you disguise it as software :) And standard that excluded silly UI patents that lead to billion dollar lawsuits (modulo various jury errors, like charging them for things not found infringing and other court adjustments)? Let's just say that I'm thinking "feature" when you're thinking "bug".

> It showed that while the total rate of innovation didn't change much across countries, in countries with patents, significant innovation was diversified into areas that were elsewhere under-developed because they were easy to copy.

"Innovation" is an inherently nebulous thing to measure. Also, if the only patents are the things the public can't easily figure out, then they would actually do the job they're supposed to--advancing science and the useful arts. I don't like software patents at all, though, and if we did have them they should require source code. It's frankly insulting that they can get away with that and I honestly question whether some of the "inventors" of software patents I've seen actually made anything.