Some good tech blogging is always welcome. Thanks.

In other news, Microsoft patents the verb 'to be.'

I worked as a patent examiner in the US Patent & Trademark Office for a number of years, so I feel a strange and irresistible compulsion to comment.

My tenure at the PTO was seemingly a lifetime ago, and quite a few things have changed since I left. The standard of "obviousness" is one of them, as is the standard of "what can be patented in the first place." Both standards are ancient in patent law, and both have changed significantly just in the last decade.

Historically, patents could not be granted on methods of doing business, nor could they be granted on any algorithm or process which merely represented a series of mental steps. If a process could be duplicated by merely thinking through a process, it was unpatentable. This is a standard that dates back to 17th-century English patent law.

Back in the day, software by itself was considered unpatentable unless it was in combination with some kind of physical device or physical process; this was due to the legal conclusion that software by itself was merely equivalent to a series of mental steps. Then, the standard evolved so that the "physical device" could include a computer modified by the presence of the software (in other words, the computer became a new and unobvious device once its state was modified by the unobvious software). This seems like splitting legal hairs, but it prevented violations of the old "mental steps" prohibition.

Because of a handful of court decisions from the Court of Appeals for the Federal Circuit, and because of the GATT agreement, those standards have loosened even more in recent years. Now, methods of doing business are patentable (for the first time in over 200 years of our patent system and 350 years of English law). Software by itself is also now patentable; a physical device is no longer required.

Alongside this (and for slightly different reasons), the standard of "obviousness" has loosened to a significant degree. This has occurred for all types of inventions, and not just software. Inventions which would have been unpatentable due to obviousness back in the day would now fly out the door with the Commissioner's seal on them.

For the first time since 1963, the US Supreme Court has just recently agreed to hear a patent case clarifying the standard of obviousness, since the whole thing has gotten so seriously out of whack. This Supreme Court term should be interesting for patent lawyers.

I agree with the first part of your argument regarding the silliness of most software patents; some software should be patentable (if it does something a human mind couldn't achieve in a reasonable amount of time, and performs some new, unobvious kind of task). However, I disagree with the third paragraph of your post; the amount of time necessary to develop an idea and the amount of time to create a prototype are and always have been irrelevant to the issue of patentability.

An inventor can see something in a momentary "flash of brilliance," and such inventions can often be revolutionary (in fact, the "flash of brilliance" was one of the tests employed by the Supreme Court in the 19th century). Also, patentability has never required that the invention be built or implemented; therefore, the time necessary to make it doesn't play a part. The issues are novelty ("Has it been done before?") and obviousness ("Is it an obvious modification of prior art?"). The time needed to make the thing is not relevant to either question.

I saw plenty of inventions that could be manufactured in a matter of hours or even minutes, but that had nothing to do with their novelty or unobviousness.

I also think the nukes should fly in the Amazon/IBM battle, but the end result should be a clarification of obviousness and a clarification of what's patentable in the first place. I don't think we should do away with patents entirely, but I think the policy of awarding patents on software deserves a serious and critical re-examination by the courts and by Congress.

--Socialist With A Gold Card