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Congress Tackles Patent Reform
nadamsieee writes "Wired's Luke O'Brian recently reported about Congress' latest attempt to reform the patent system. In the article O'Brian tells of how 'witnesses at Thursday's hearing painted a bleak picture of that system. Adam Jaffe, a Brandeis University professor and author of a book on the subject, described the system as 'out of whack.' Instead of 'the engine of innovation,' the patent has become 'the sand in the gears,' he said, citing widespread fears of litigation. The House Oversight Committee website has more details. How would you fix the patent system?"
And then I would patent it.
I don't need no instructions to know how to rock!!!!
Definitely the first step in patent reform is to solicit the opinions of the hoards of thoughtful, article-reading slashdot users.
PJRC: Electronic Projects, 8051 Microcontroller Tools
I just hope they don't help things like Sonny Bono did.
Granted, the patent system is being abused left and right and is often used just as a precursor to litigation, but is it reasonable to believe that anything that this Congress produces will alleviate any of the problems?
This issue, along with IP, Copyrighting, and DRM should ideally be tackled all at once. However, given that both Republicans and Democrats regularly side with big business, I would expect no change whatsoever to open up competition and innovation.
This may rquire some reform in labour laws first, but...
The USPTO needs to assemble a panel of 4-year-olds. Each time a patent application comes in, the panel would be asked how they would implement the title of the patent (they do not see the content). If the panel comes up with a process resembling the original patent, it would be denied.
Simple...
Make patents shorter term, 5-10 years. Things move very quickly these days. If you can't get it out to market in a few years, then you don't have anything specific enough figured out to patent. Patents should only be allowed for very specific implementations of an idea/product/process/whatever. No patenting what you're trying to do, just the way that you're doing it.
Along with better criteria for awarding patents, there should be penalties for people who flood the PO with lots of stuff, hoping that something will stick. Make there be a sizeable penalty for submitting patents that gets rejected. Give a person/corporation a few freebies, a couple per year that can get rejected with no penalty, just to protect the little guys who aren't quite aware of what they're getting themselves into.
And don't make the patent office earn their budget through the number patents they grant. That's like funding a police department purely on how many crimes they solve per year, when we'd rather they find ways to prevent the crimes in the first place.
One time I threw a brick at a duck.
This gives us several benefits: 1) it's more analogous to a physical invention where all the parts have to be described in detail; 2) the source code to enable an invention would be free and public knowledge at the expiration of the patent; and 3) it's useful for others to understand exactly what the inventor is trying to claim as part of his patent. The public would benefit from a better description of the invention, competitors could determine exactly what a patent is supposed to do, and the patentor would not have to face the specter of business method or software patents being eliminated in their entirety (which I'm sure more than a few people will call for).
Then what incentive is there to innovate? Why invent? 3M or some other big company will just take your idea and mass produce it cheaper than you could.
I don't need no instructions to know how to rock!!!!
Patent holders must license or produce the product before they can sue anybody. That should make it a lot more difficult for patent trolls.
Prohibit people from suing private citizens for patent infringement - or at least limit the damages/legal costs for them.
Make with-holding prior-art from the examiner an offense; have the people sign an affidavit or something, and enforce it.
Have a higher burden of proof for the non-obviousness. Have the people that apply show to the examiner how their idea is different from what's out there.
No patents on business methods, algorithms, living organisms and such. This is ridiculous and got out of whack due to some messed up court ruling ("anything useful under the sun [] should be patentable"). Make a law to reserse said court ruling.
Maybe a public review period where prior art can be submitted to the examiner?
More examiners. I read somewhere that they have only about an hour or so to search for prior art, due to the small number of examiners the USPTO has.
Overbroad patents seem to be the most troublesome thing. Patents should be limited to operable technologies and abstract ideas should not be patentable. An example is the idea of "one click purchasing." The technology to provide that service would be patentable, but not the idea of one-click purchasing. Ditto having a Web site that makes recommendations to customers based on past purchases- the technology would be patentable but the idea would not. I've picked on Amazon.com in both cases, but there are plenty of similar ideas that have been patented and over which litigation has occurred. Great for trial lawyers but not so much for just about anyone else.
The moment you work for a company that develops inventions and you meet their IP lawyer they tell you "if we knowingly violate someone else's patent then we're fined three times as much as if we didn't know. So under no circumstances read anyone else's patents.". So the whole thing is a complete scam and everyone involved is complicit. How come it needs a professor to say what everyone who works in IP has always known?
Doesn't it make you feel good to know that our freedoms are protected by politicans, lawyers and journalists.
You don't have to innovate. You're perfectly allowed to sit at home eating cheese and watching television while I innovate.
ResidntGeek
But... But that would increase invention competition dramatically and you'd be able to invent improved stuff compared to the one who was first!
Beware: In C++, your friends can see your privates!
I think the time has certainly come for congress to "fix" the patent system. Heaven knows we don't need that thing reproducing!
if you have to ask, you'll never know.
It is by my will alone my thoughts acquire motion; it is by the juice of the coffee bean that the thoughts acquire speed
Scrap the triple damages for "willful" infringement. People should be encouraged to look up patents so they can license existing inventions instead of wastefuly duplicating effort. That's what the system was supposed to be for.
Related, allow a patent search that meets some reasonable criteria (e.g. done via the patent office) to be a defense against infringement.
Allow economic damages only. If you're not trying to get money out of your patent then you shouldn't get money out of infringers.
Patent office should keep some engineers, or maybe 10-year-olds, on staff. When an application comes in, these people are asked "how would you solve the underlying problem?" If they come up with the same answer as the patent application within a day, the application is thrown out for obviousness.
1. Get rid of the "presumption of validity". Patents, once issued, are assumed to be valid unless proved otherwise, but actually doing the legwork on every single patent to make sure it's good before approving just isn't feasable, so lots of bogus patents get passed.
But courts still defer to the patent office unless the case is unambiguously bogus.
Move to something more like the copyright system, where having a copyright issued only proves that you had a claim as of a certain date and that your paperwork was in order.
The burden of proof would then be shifted to the patent holder to prove that their patent was valid as part of an infringement lawsuit, back where it belongs.
2. Get rid of or at least weaken submarine patents. The obvious way to do this is to make it so that no damages can be collected for actions before the patent holder files an infringement lawsuit.
The idea this congress is going to make changes in the patent system that actually benefit society as opposed to patent-holders is daft. Congress has been bought and paid for - look at what they did for Disney when they "reformed" the copyright laws. Nope, if Congress changes anything it will be to extend the length of patents and make them more difficult to challenge, which is the exact opposite of what needs to be done.
Need a Python, C++, Unix, Linux develop
Easy. Stop allowing patents for concepts, knowledge, ideas, methods, algorithms, etc.; and allow them only for things. Ideas are easy; it's implementation, marketable products, that are hard, and worthy of economic protections.
Patents are founded upon the concept that we all benefit as a society when those who develop products that make our lives better and/or easier are given a chance to benefit financially from those products, and hence have an incentive to undertake the often difficult development and production of them in the first place. Allowing patents on ideas, etc. has no such benefit, other than for the patent holder.
Hey, if I was a smart guy, I could sit around in my underwear, simply thinking up ideas and filing patents on those ideas, and possibly end up very rich someday; but what have I provided society as a whole? Squat. Less than squat, in fact, if I use my patent to club someone who decides to actually bring my idea to fruition, preventing, deterring or delaying that idea from implementation.
Which is exactly what's happening under the current system: anyone who actually wants to create a product, whether it's a next-generation power source, a ginchy playtoy, or a cure for cancer, first has to evaluate the risk of some "submarine patent" held by some patent troll robbing them of the fruits of their work -- the real work, that of actual implementation.
"Invention is 1% inspiration and 99% perspiration."-- Thomas Edison
Quit letting lawyers and speculators control the 1%, and set the 99% free.
Learn from the mistakes of others. You won't live long enough to make them all yourself.
I'd add a new kind of FOSS patent, where the idea immediately becomes public domain and anybody can implement it. Useful to defend ideas from commercial interest patents.
...) standards. If grantee belongs to standards bodies, they must disclose all patents granted and pending, or their behavior is tort fodder for competitors.
For commercial interes patents, this is what I'd do:
1) Patent gives grantee a monopoly for three years, then it expires and becomes public domain. You've got three years to make your killing, then you have to compete on a level field.
2) Be stricter about giving them out - patent really has to be for something professionals of the field hadn't already thought of.
3) Make it easier to challenge patents; if a challenger can produce prior art, patent is immediately voided, and grantee is barred from applying for new patents for ten years. If grantee had won any civil judgments regarding the patent while it was in force, any monetary judgments must be completely refunded, along with losers' legal fees.
4) No patents may be granted that could prevent other entities from implementing official industry (IEEE, IETF, ASME, NIST,
Disallow patenting an idea of how to do something. Proof of concept must exist. Limit software parents to 10 years and require that the source code and all source code for updates and/or patches be given to the USPO. After the 10 years expires the source code becomes public domain to be used by startups, students, and competitors.
Deny all patenting of genetic and biological technology.
If a company cannot make a profit off an idea that they have sole access to for a decade, then that idea or company is faulty to begin with anyways. Let somebody else have a chance to make the idea work.
- I voted for Nintendo and against Bush
company. The truth is that large companies regularly steal ideas and then BEG you to sue them. If you do, they grind you into the ground. You think that SCO vs IBM is long winded and expensive? Not even close. There are suits that take a decade. and the small guy always lose because they have to settle for a fraction (or sell out to somebody with DEEEEPPPPPP pockets).
I prefer the "u" in honour as it seems to be missing these days.
Eliminate all patents on software and business methods.
Barring that: Consider "doing X with a computer" - where doing X without a computer is a well-known process and the computerization is a straghtforward analog - to automatically be "obvious to a practitioner of the art", and unpatentable in it own right. (If "doing X without a computer" is patented, of course, "doing X on a computer" would similarly be "doing X" and
Software doesn't need patent protection.
- Copyright (even absent the crazy extensions in the last few decades) is adequate to avoid direct copying.
- The the time needed for the competition to recognize a profitable product, reverse-engineer it, write a replacement, and bring it to marketability is adequate to let innovators recover their investment plus profit and establish themselves in the market niche they create.
Most "business methods" have similar characteristics regarding payback of development costs. Further: Patenting them is so fundamentally anti-competitive that it makes no economic sense.
Keep patents restricted to things like physical inventions, manufacturing processes, drugs, and the like, which do have a big development cost that needs a significant time to recover.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Here's how I'd approach the problem:
(1) Every year, a patent recipient names the price of an unencumbered license, $X.
(2) Every year, to renew the patent, the patentor pays $X*(2^r) for r being the number of previous renewals.
(3) As soon as a patent is not renewed for a year, it ends.
What this means:
(a) It is not practical in the long term to use a patent to prevent something from being built -- a high $X means a high renewal fee.
(b) Patents that are genuinely useful get renewed; patents that are just so much legal cow-dung will not be profitable to renew for as long.
Problems with this scheme: The exponent constant might need to vary by field; the scheme would have to be revised for design patents and plant patents; might conflict with various treaties; might be preferable to restrict the ability to use a small X one year and a larger one the next year (require X to be non-increasing?).
Of course, that would have meant Bell's patent on the telephone would have been denied. Quote: Bell filed his application just hours before his competitor, Elisha Gray, filed notice to soon patent a telephone himself. What's more, though neither man had actually built a working telephone, Bell made his telephone operate three weeks later using ideas outlined in Gray's Notice of Invention, methods Bell did not propose in his own patent. History of the Telephone
Aside from completely abolishing the patent system, my suggested patent scheme is to put a total limit N on the # of currently-valid patents (to make it both easier to search to see if you are violating a patent, and to put bounds on the "slow-down" effect that patents have on the smaller innovations that occur on a regular basis in society).
Once you've got a strict limit on total # of patents valid (making them a fairly rare resource), then you can use a competitive process to play off the merits of each potential patent against each other, and to leave only the best ones valid. An obvious way to do that is to hold an auction: allow anyone to submit patent applications for each patent "slot" which becomes available, and allow everyone to bid on all of the patent applications. Whoever has the highest bid will have the patent application that they were bidding on become valid, and they will get all the rights that a patent owner usually gets.
Patent "slots" will become available either due to expiration, or being thrown out due to the usual obviousness or prior art criteria. This means that each bidder will have to perform extensive due diligence on anything they bid on, since they can potentially waste a lot of money if they buy ownership of a patent & then have it thrown out.
To make things a lot more interesting for the "small" innovators, all of the money that was paid by a bidder to win ownership of a patent, should go to the submitter of that patent. It's a big win-win for society: small innovators can win a big jackpot (and have a big incentive to contribute a steady stream of new ideas), and the people who end up purchasing ownership of the ideas are exactly the kind of people who have the resources to take fully exploit them. (You just have to make sure that bidder & the submitter aren't the same people, otherwise the auction idea breaks down).
And the moment you begin selling what it is you made, Walmart will purchase one and copy it, undercut your prices, selling at a loss until your company's flat broke and out of business, then raise the prices back to yours to make a profit again. Walmart hence makes the big bucks, while you go deep into debt.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
The trick is to give it away for nothing in the first place. Then watch Walmart try to undercut that.
"Nine times out of ten, starting a fire is not the best way to solve the problem." - my wife
You're perfectly allowed to sit at home eating cheese and watching television while I innovate.
Unfortunately, most people aren't wealthy enough to take this option. For most independent inventors, the choice comes down to
1. Spend a year developing an invention, while rapidly going into debt, and hope that at the end of the year it will possible to patent the invention and pay off the year's expenses, or
2. Forget about building a better mousetrap, and get a normal job instead.
Aside from a very small subset of the population (tenured professors and the independently wealthy), financial imperatives limit the ability of people to innovate unless there is some form of payoff available at the end.
Tarsnap: Online backups for the truly paranoid
My first item is simple common sense, at least to anyone on /..
Second item would restore patents to individuals. The concept of patents was not designed or intended to foster large portfolios wielded by legal entities with mountains of cash and armies of lawyers. It was not even designed with Edison in mind. Restore patent holding to the actual living, breathing inventors, and let their employers have first refusal on any patentable item developed with company funds.
Third, business moves a lot faster than it did 50, 100, 200 years ago. Allowing patents to last 20 years is absurd in today's market.
Public Universities should not be allowed to be complicit with large corporations in holding patents hostage, especially in the science and medical fields. Actually, this could be made irrelevant by #2.
In general, reform the entire system to be oriented toward individual inventors, rather than Corporate innovation squatters.
If Congress does anything about this, it won't be caused by any domestic forces. The EU is gaining strength in these areas and pushing lots of reforms through. If the US wants to continue trading with Europe, many of America's draconian laws will have to be updated, including patents.
The reason your idea would not work is that there is no duty to conduct a comprehensive search for a prior art before filing a patent application. The reason that there is no such duty is that a full search of every printed publication that is in existence would cost hundreds of millions of dollars. Under Federal Rules (37 CFR 1.56), patent applicants are required to submit material art that they are aware of, and patent applicants commonly submit dozens of prior art references for consideration by the USPTO. If an applicant (or its attorneys) violate Rule 56, the patent can be invalidated for inequitable conduct.
Additionally, due to the billions of prior art references that exist, invalid patents are often granted without any fault whatsoever by anyone. Should my client in Arkansas be punished (for a sizable penalty as you suggest) for not being aware of a 1990 paper (written in Greek) that is only accessible by manually flipping through a card catalog in Athens? The 1990 Greek paper, indexed only in a physical card catalog in Athens, would be prior art that could invalidate my client's patent, why should he (or I) be punished for not finding it?
It is an arms race where the consumer always wins.
Exactly, and having no patents will just make it even more of an arms race. Companies will
be forced to innovate constantly to survive. Getting rid of patents would be a huge win
for innovation and advances in technology.
// TODO: Insert Cool Sig
Right now, a patent can only be rejected if it is obvious, if there is prior art, or if it doesn't describe the invention in enough detail. If a patent examiner is handed a patent that is precise but incomprehensible, he has no grounds on which to reject it. I propose the following be added to the policies of the USPTO:
A patent shall be rejected if it either
- fails to use standard terminology where appropriate, in a way that makes reading of the patent more difficult
- describes aspects of the invention which are minor or irrelevant but not novel in excessive and unnecessary detail, or
- is in any other obfuscated, in the opinion of the examiner.
The typical patent is a very long description using precise but completely non-standard terms. Patents spell out in detail things that a person in the field would use one or two words for, and as a result, patents are hard to read, hard to search and hard to judge. Bad patents slip through the cracks not because the patent examiners don't know what they're doing, but because the patents themselves are extremely difficult to read.
Well, I don't know if it would be that much better. I suspect that the total effect of patents on innovation is very small. A mind experiment, if you will: AMD vs. Intel, no patents. What are they going to do? Agree to stop innovating and dismantle their R&D departments? The very next day all researchers will be re-hired in China to design a better, cheaper CPU.
If you let researchers go, you cannot really catch up to your new rival, because you do not have anyone who understands the technology anymore. But if you keep your R&D staffed, you could as well make them innovate!
A number of posters are arguing that the patent period needs to be reduced to some rather short interval, typically around 5 years. The problem is, it often takes about that long just to get the financial backing to turn your patented widget into a viable commercial product. A too short of a patent period and no one would be stupid enough to fund a patented project. Just wait a few years and you can skip paying the inventor his share.
The problem has never been how long a patent lasts. The 20 year period is actually quite reasonable. The problem is how easy some really stupid shit can be patented, and how much of a pain it is to get a bad patent revoked.
Unfortunately, I'll bet money that Congress will do to patents what they did to copyright, make a bad situation worse. (bad for the little guy, wonderful for the megacorps).
-- Will program for bandwidth
I don't think this is true anymore. I think Open Source software and other open initiatives show that there can be innovation without forming a special class of innovators, or even "protecting" their "IP." We are really in a time where people can innovate and share it with the world immediately. The costs have gone down with the increase in communication. Pretty soon we will see open hardware as well, and as more and more things depend on computers and software, we will see more and more open source software.
You're style of thinking is pre-internet. Knowledge travels fast, so do ideas. The money isn't in keeping secrets anymore, once one person knows them, it spreads too fast. So as the internet develops, and technology progresses DESPITE patents, we will see less and less of a need for laws to protect innovators. It's not a black and white, invent or work situation anymore. Granted, we may have to ween ourselves off this patent system as technology advances, but its coming!
"how can they call it a MINE if everything here is THEIRS?!?!" -Straight Jacket
This is pure undiluted horse shit. Code is covered by copyright not patents. Method patents (of which software patents are a subset) should be abolished! If you have a patent on software, you should be required to relinquish any and all copyright claims to that code. Why should software methods be protected by both copyright and patents?
And that is how I would "fix" the patent system. Abolish all future method patents and give current holders the choice of continuing their current patents with no copyright protections after expiration or simply converting them to copyright where they belong. The choice would be theirs to make.
While I'm on a roll here, if you can also remove the assumption of validity of patents, that alone would go a long way to stopping the patent trolls.
B.
This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
The following addresses the US patent system, which for all its myriad faults, is in many ways the best in the world (at least as far as creating incentives for progress.) I don't address foreign patent systems here because, 1) I don't know them well, and 2) the ones that I do know a bit about all too often serve only the interests of large corporations with deep pockets.
How to Fix Patents Easily ("Dub Dublin's Proposal for Patent Reform"):
Part One: Instead of the current fixed length term of patents (20 years, in the US), make the term of patents adjustable on a sliding scale that is inversely proportional to the number of patents *issued* in that category in the trailing twelve months.
Part Two: Keep the reasonable cost of patent filings, but after a relatively low threshold of filings (say, 50 or so), make subsequent filing fees rapidly accelerate with the number of patent applications filed (also figured over the trailing twelve months). This has many benefits:
"The future's good and the present is nothing to sneeze at." - Roblimo's last
preach it bro! How many *millions* of laws on the books now? Extrapolate 20 years from now. How the heck would ANYONE avoid being a "criminal"? All new laws should have automatic sunset clauses, they all should be vetted as to being lawful FIRST, not passed then some poor dude has to go "break" a law and get it heard in front of the supreme court, there shouldn't be multiple laws passed hidden inside of unrelated bills, etc. We have a lot of ways to improve this system. I think an immediate freeze on any new laws and several years of review would work for a starter.
As to patents and reform, a good start is no more software patents or business process patents. witness: software is allegedly patentable, and they get granted, yet has *no warranty required*. Only "product" out there with such a deal. El wrong-o. If it is worthy of a patent and is called a product, it needs to come with a warranty. If anyone-you can't handle a warranty because it would be "impossible" to code that good, no probs, give up patents then because it is obviously not a workable product, it is a work of art, and stick to copyrights, as every other written *thing* is.
The whole patent farce has long since past its use-by date so let's just terminate it by repealling these unjust laws and treaties.
It was created to boost invention and innovation, by giving a defined monopoly for a set period in exchange for the publication of pretty precise specifications of the invention. It did what it was supposed to do for quite a few years, while the things patented were relatively simple manufactured objects. That was then, now the patent system gives the inventor an absolute monopoly for a set - imho excessively long - duration in return for the publication of totally obfuscated plans. Thus, in effect, depriving society as a whole from full exploitation of the ideas behind the patent for 20 years. Two items which come to mind immediately are the cavity magnetron, as used in microwave ovens, and xerographic copying. Neither of these really flourished until the original patents ran out. I'm sure there are 'hundreds', i.e. millions, of similar examples. I believe that commercial success from the implementation of ideas should stand on on its own. In my not so humble opinion it's morally wrong for the State to prevent improvement of manufactured things by competitors, but that is what is happening now-a-days. In practice patents make it impossible to make a better mousetrap. While that's merely wrong, using trade treaties to impose the whole crooked and corrupt mess on other societies, well that's just Satanic. But that's what is happening today and is the root reason why the US is seemingly loathed by the second and third tiers of the world's population. To put it simply, that's what caused 9/11. Now, USA: Please fix it and rejoin the Family of Nations.
Thank you, and thank God somebody said that. The patent system has never worked, not even in the age of steam engines, where better designs were held back over a decade. Not even in the industrial era where patents became such a mess, they had to make "interface" patents illegal to keep the whole factory system from falling apart. Not even with Edison, the later years of his life wasting away on patent lawsuits. One of the engineers who created CDMA nearly quit electronics in disgust because of patents (even though they made him a millionaire). Not even when they last reformed them by creating a patent court, which made the problem worse because now they gained legitimacy by empowering patents. Patents with AIDS drugs are murderous, it is outrageous that African nations were sued in the world court not to use Indian made generics while over a million people died. It is outrageous that air-bags and anti-lock breaks were held back 20 years. HEY! 40,000 people die per year in auto accidents in the US alone. Patents are probably responsible for the murder of more US citizens than WWI, WWII, Vietnam, and the war on terror combined. Clinging to patents like this is not rational behavior, it's like those people who saw all the evil of the slave plantation system and said "well, it only needs reform". Another fradulent property right - how ironic.
Just how many people are we willing to murder for the sake of patents anyhow. Don't answer that question lightly, because it will probably come true.
I wouldn't fix the patent system. I would abolish it. The trouble with the patent system is that when it's time for something to be invented, multiple people invent it at the same time. Inventions don't come from a vacuum. They come from a recognition that a problem experienced by many people needs to be solved. Thus, the major impetus for creating a solution comes from the public who has the problem. So why should somebody own a solution just because they created it, when the solution has just as much to do with the existance of the problem as the existance of the problem-solver?
Or, more succinctly, all solutions are obvious in the context of the problem.
Don't piss off The Angry Economist
...and they are very proud of the work they do. The PTO is one of the few government agencies which actually operates in the black, generating more revenue than the PTO uses. According to an examiner... "the PTO must be doing something right!" ... especially compared with other government agencies which bleed red ink.
The hidden costs of bad patents is not readily apparent to the PTO examiners. And the incentives (bonuses, efficiency) in the PTO are designed for quick turnover of the backlog. When you add in the fact that a denied patent takes an incredible amount of extra time (3-10x) to process, it's bad for the examiner, it generates little for the PTO... it's easy to see why the PTO emphasizes a quick approval and a less than cursory examination.
In light of this internal incentive scheme, all the strange "obvious" patents that we actually see coming out of the PTO these days make sense.
To fix this, yes, deny business method patents, yes that software should be copyrighted but not be patented, and update patent validity time limits. But more importantly, I would change the the application fees to change the work incentives for an examiner. A denied patent costs a lot more work for the examiner than an approved one, so it should cost a lot more. Maybe 3-4x as much. These are the changes I'd ask for
Examination. Include a large deposit with each patent application, to be refunded if the patent application is approved. If approved, the examiner rates the approval as being "clear, insightful,easily read, ok, poorly written, etc.. This rating will go on the patent record, and if the patent is ever challenged, it would be court evidence that the PTO thinks it's a well-written patent (e.g. hopefully stronger and not as ambiguous). An approved patent would have an incentive to be well written, both to be get quicker approval and to be stronger in court.
To deny the patent, the examiner must outline how it is deficient (this is the extra examiner work) *and* the PTO keeps the deposit and the examiner gets a bonus. Since the examiner's reasoning has to be included as part of the patent denial, this would put at least some check on spurious patent denials.
Licensing. If the patent holder does not produce a product in a year, anyone may license the patent for a fixed fee/product without approval from the patent holder. This fixed fee might be high at first, but the fixed license fee would go down down the longer there is no product from the patent-holder. If the patent holder eventually produces a product, then all the prior product licenses are automatically grandfathered in.
The original idea of the patent system was to document ideas clearly for eventual release into the public domain. It would benefit everyone to search the patent archives for ideas that would be neat to use or to license. Unfortunately, this is not realized. There is little incentive to read the original patents for the ideas; patents are not intended to be well-written.
This will at least set up the incentives work towards clarity and innovation and better products.
At the end of the day the real test of whether something should be patentable or not should be related to the reason patents were instituted in the first place...to incent investment in R&D by rewarding that investment in innovation. The reward, in the form of artificial protection from competition for a limited time, is enough to ensure the investor(s) profit from the investment. Obvious or not, if a company or individual has invested significant time/money in a program aimed at solving a problem and come up with a new and unique (even if obvious by hindsight) solution they should be rewarded not for the idea, but for the investment, thus incenting investment in innovation.
The fundamental problem with the patent system today is that it has been warped over the years into something it was not intended to be. Remember, the patent system is not something that has to exist; it is something that we as a society agree to have in order to incent individuals and companies to perform activities that are of benefit to society. Patenting of business processes, software patents and incidental patents (my own personal winner for least deserving) are all the result of this move away from the original intention. Combine this shift with the allegations of overworked and wrongly incented employees and the patent system certainly looks broken
There appear to be two basic uses for the patent system that unfortunately are sometimes at odds with each other.
[Aside: When I worked for a large s/w company we were encouraged to regularly trawl through our developed code for potentially patentable algorithms, this is clearly a case of (2) not (1)]
Surely the only useful purpose for a patent system is to incent companies to make investments that would otherwise not have been made. If a company got a clear benefit from an investment and would continue to benefit whether granted a patent or not then there is no point in society (i.e. the rest of us) granting them a patent! What they have is a trade secret that should be protected by other laws (copyright?); it should not be a patentable innovation. Other companies should have the right to make a similar investment to develop a similar solution (or license the technology/solution from the original company if that is agreeable and makes more economic sense)
Today, if a company has a trade secret that they feel they could make money off they typically have to patent the trade secret (even if only defensively) and then license it. This behaviour (licensing developed solutions) should be incented but not using the same system as that which incents investment in innovation.
So here is my strawman proposal...