I’m on your side with raising the standard for obviousness, but I think there’s some flexibility in the courts and USPTO (re)examaination process to efficiently address bad patents rather than merely invalidating them across the board.

Part of my point, though, is that I think the patent office uses a weird, legalistic, and highly restrictive notion of obviousness that rests largely on the existence of documented prior art. I’ve discussed this with a number of actual programmers, (who would be “of ordinary skill in the art” of computer programming) and almost all of them consider almost every software patent they’ve seen to be obvious. The patent office, however, doesn’t seem to rule that way. I’m not sure why that is exactly, but I think the first step to fixing the problem is to demonstrate the scope of the problem–which, in my opinion–is that virtually all software patents ought to have been rejected as obvious.

Thanks for commenting! The question I’m exploring is a little bit more specific than that: is there such a thing as a high-quality software patent? My working thesis is that there isn’t such a thing, and so far, I’ve yet to see a single example to the contrary.

I haven’t been cherry-picking outliers here. I’ve pretty much been typing “software patent” into Google News and examining the most prominent software patent dispute in the preceding week. If you can point me to an example of a software patent that you think is particularly solid and of high quality, I would be thrilled to feature it as this week’s software patent of the week. You can post the example here, or email me at tlee –at– showmeinstitute.org. Thanks!

Mr. Stone wrote: “But the idea won’t die. Last November a Russian physicist received a U.S. patent for an antigravity craft, and then the American Institute of Aeronautics and Astronautics gave an award to two German scientists for inventing a hyperdrive motor capable of Star Trek speeds. These proposed devices, like their predecessors, aim to cancel gravity by wrapping an object in superconducting coils to generate a magnetic field so strong that it warps space. Experiments have failed to back this theory.”

Besides the obvious question, of how a patent can possibly be granted for a technology that does not yet work, is the question of what happens if someone actually makes a workable anti-gravity device? Will that unnamed Russian physicist actually claim patent infringement?

Given today’s predilections for using lawsuits as a means of alleging intellectual property ownership (no matter how dubious), the answer would be yes. Clearly, the potential of a threatening lawsuit would have a chilling effect on those wishing to pursue anti-gravity research. If research is discouraged, because of the lawsuit potential, that would delay the development of this nifty technology (assuming it is possible)that would have many useful commercial implications.