I've been meaning to publish a series of posts on the problems with the current attempts at patent reform that I hope to get to soon, but the punchline to it is that the real problem
with the patent system is that it does a terrible job evaluating "obviousness." The various attempts at reform don't deal with this issue at all, and thus the problems will continue. While things have become a little
better due to the Supreme Court's Teleflex ruling, which changed the standard for "obviousness" on certain patents, it's still a major problem. Patents are only supposed to be awarded on things that are new and
non-obvious to those skilled in the art. But, for years, the "non-obvious" part has basically been ignored in favor of the "new." That's because all the Patent Office looks at is "prior art." I've had discussions with people in the comments who insist this makes perfect sense (most of these people are lawyers). The problem, though, is that just because something is new
doesn't mean it's not obvious
. It could just be a natural progression or maybe it's just an implementation that someone finally got around to doing.
However, Tim Lee
and Julian Sanchez got into a discussion about the recent injunction
against Microsoft Word over a blatantly obvious patent, and Julian did a great job explaining why obviousness and newness are different and
why explaining obviousness can be so difficult. The argument is that since it's so difficult to explain obviousness, patent examiners just don't bother, and instead focus on the "newness" part:
The problem is that if an applicant wants to appeal, the examiner, who may well be a programmer, has to defend his subjective judgment of what's "obvious" with some kind of explicit argument. And the result (says Tim) is that in practice the "non-obviousness" requirement has been largely conflated with a review of the "prior art" or previous related inventions. The upshot is that unless someone else has done almost exactly the same thing before, you've got a good shot at getting the patent. Maybe this is motivated by a version of the no-five-dollar-bills-on-the-sidewalk fallacy in economics: If nobody has done it before, it can't have been all that obvious. But, of course, in a rapidly evolving area of technology, someone's always going to be the first to do something obvious.
I think the source of the problem in the patent system may be linked to a point Friedrich Hayek made long ago about our tendency to overrate the economic importance of theoretical knowledge and vastly underestimate the importance of tacit or practical knowledge. The non-obviousness requirement, tied to the standard of an observer skilled in the appropriate art, is supposed to make the patent system sensitive to this kind of knowledge. But if examiners have to defend their judgments of obviousness, they're essentially being required to translate their tacit knowledge into explicit knowledge--to turn an inarticulate knack into a formal set of rules or steps. And Hayek's point was that this is often going to be difficult, if not impossible. Just as a loose analogy, consider that in the Principia Mathematica, Bertrand Russell and A.N. Whitehead's attempt to provide a rigorous, formalized basis for ordinary arithmetic, it takes several hundred pages to strictly establish the proposition "1+1=2." It takes a fairly advanced mathematical education to understand the explicit elaboration of a practice (counting, adding) that we expect most children to master.
If you ask me how I knew the way to go about writing the translation program in question, I'm not sure I could tell you--just as we sometimes find ourselves at a loss when we're asked to give explicit directions for a route we know by heart. Things that are "obvious" are often the hardest to explain or articulate explicitly, precisely because we're so accustomed to apprehending them by an unconscious (and possibly itself quite dizzyingly complicated) process. The very term "obvious" comes from the Latin obviam for "in the way"--that is, right in front of you, where you can't help but see it. Except the visual processing system we "use" automatically is vastly more sophisticated than what we're (thus far) capable of designing. If you had to describe explicitly the unconscious process by which you see what's right in front of you, it wouldn't seem "obvious" at all. The same, I expect, goes for the knack of knowing how to go about solving a particular problem in coding or engineering--with the result that the patent system systematically undervalues the tacit knowledge embedded in those skill sets until it's embedded in a piece of "prior art." So knowledge that's widespread but implicit and inarticulate is routinely mistaken for the kind of innovation it's necessary to incentivize with a monopoly grant. In effect, the hidden value of dispersed tacit knowledge is redistributed to the first person to render it explicit.
That's about the best description of why prior art is not
the best test for obviousness that I've ever seen. Brilliant. But, if that's the case, how could
you test obviousness? I've always believed that the test is actually laid out directly in the law itself. If it's supposed to be whether or not the invention is non-obvious to those skilled in the art, you should ask those skilled in the art
. You could still have an examiner who would be in charge of weighing what those people say, but if they all explain how or why something appears to be obvious to them, that should be a pretty big clue that there's a problem. The idea that this would lead to people lying about something being obvious (or believing it's obvious in retrospect) has mostly been debunked
. It turns out that people aren't quite as dishonest as some patent attorneys believe.