I received some thoughtful comments from an associate about my last post. In part, this is what he said:
As a former software guy, I do have an opinion on the software patents issue in your latest entry. I’m not against protection, and I agree that Copyright is probably not the right sole protection for software, but I also don’t think the patent system, as it stands, is not right either. The problem I see is that there is not nearly enough evaluation of what is obvious vs. non-obvious. Much of what I see, is stuff that many people would come up with given the same problem. I don’t think it’s right to reward the first person to face a problem with 20 years of protection (in the software world that is essentially eternity) when most developers in the same situation would do roughly the same thing. Is it really innovative if the average developer would do the same thing in the same situation?
I agree that the definition and enforcement of obviousness is at the crux of the issue. Everyone involved in patents, from the inventors, the businesspeople, and the anti-business people agree that consistently well examined patents are better than poorly examined patents.
If you define The Problem as “some bad patents have been issued,” we can address the problem by better examination and clearer guidelines. If you define The Problem as “it all looks obvious in hindsight,” we can address the problem by placing the burden on the accused infringer to prove non-obviousness. Many times, though not all, the invention was truly unique and novel at the time. Just because it has become quickly adopted and accepted in the marketplace only underscores the pent up need for the invention in the first place.
I am afraid that many of the groups seeking to destroy the patent system are trying to kill the goose that is laying the golden eggs. It seems like many of their goals are better served by strengthening antitrust laws rather than weakening patent laws. Additionally, there may be some signs that these groups are more interested in socializing creativity, rather than letting the free market system even the playing field.