I absolutely agree that NPEs are not the problem, but I do think that obvious vs non-obvious is the problem, and we'd BETTER make some traction in that direction.
Okay, here's my wild idea of the hour:
AIUI (IANAL, and I've never been involved in a patent application), a patent contains claims and specification. I'm not sure how much this is like C declaration vs definition, but in all the patents I've seen, the claims contain no implementation details. What if, as part of a patent application, the USPTO published the claims in a public forum, and allowed the public to put forward suggested implementations. If any are filed, obviously the patent is obvious. Interested amateurs could amuse themselves by contending, but also competing businesses could protect themselves from trivial patents from their competitors, by allocating paid employee time to monitor patent claims in areas of interest. Admittedly, future market entrants wouldn't yet know they should monitor the area, so it's not perfect.
As for your specific suggestions, rayiner, I think these are similarly not-quite-the-point as the focus on NPEs. I agree that #1 is a "collateral way to attack the problem", but then again so is focussing on NPEs. (After all, how many useful NPEs are there? If the cost of eliminating the parasitic NPEs is the loss of the legitimate drug patent holding company that you describe, I could live with that.)
And as for #2, it's not at all clear to me that it'd be an improvement. Companies would double down on requiring engineers to not read patents, as some companies already do to avoid triple damages. In my ideal world, we continue to stand on the shoulders of giants.
> What if, as part of a patent application, the USPTO published the claims in a public forum, and allowed the public to put forward suggested implementations.
> Companies would double down on requiring engineers to not read patents, as some companies already do to avoid triple damages. In my ideal world, we continue to stand on the shoulders of giants.
I think a lot of frustration with the patent system comes from independent inventions that nonetheless infringe on a patent. The obvious solution is to make independent invention a defense of some sort.
There is a trade-off, as you recognize. The less you can defend a patent against someone else developing the same technology, the less incentive you have to disclose anything that would help them do so. As an inventor, I don't want other people to "stand on my shoulders" unless they are required to compensate me for my contribution. You see this heavily in areas where patents are for whatever reason hard to use. E.g. Intel doesn't use patents on its process technology, it uses closely guarded trade secrets.
Okay, here's my wild idea of the hour:
AIUI (IANAL, and I've never been involved in a patent application), a patent contains claims and specification. I'm not sure how much this is like C declaration vs definition, but in all the patents I've seen, the claims contain no implementation details. What if, as part of a patent application, the USPTO published the claims in a public forum, and allowed the public to put forward suggested implementations. If any are filed, obviously the patent is obvious. Interested amateurs could amuse themselves by contending, but also competing businesses could protect themselves from trivial patents from their competitors, by allocating paid employee time to monitor patent claims in areas of interest. Admittedly, future market entrants wouldn't yet know they should monitor the area, so it's not perfect.
As for your specific suggestions, rayiner, I think these are similarly not-quite-the-point as the focus on NPEs. I agree that #1 is a "collateral way to attack the problem", but then again so is focussing on NPEs. (After all, how many useful NPEs are there? If the cost of eliminating the parasitic NPEs is the loss of the legitimate drug patent holding company that you describe, I could live with that.)
And as for #2, it's not at all clear to me that it'd be an improvement. Companies would double down on requiring engineers to not read patents, as some companies already do to avoid triple damages. In my ideal world, we continue to stand on the shoulders of giants.