I'm sorry that you do not believe that I have treated your points charitably.
First on encouraging progress, it is a complex set of issues.
For basic research I'm in agreement with https://issues.org/perspective-is-the-bayh-dole-act-stifling... and the successful approach outlined at https://www.chronicle.com/article/Michael-Milkens-Attack-on/... that progress is maximized when we fund lots of ideas, make them share information quickly, and let them build on each other. The incentives of patents run exactly opposite from that. If we're paying for basic research, I do not want it locked away in patents. (Obviously private research is a different story, companies need an incentive to engage in that.)
Next there is the problem of pharma. The challenge here is that proving effectiveness and safety to the FDA's satisfaction is extremely expensive. Patents are their route to recouping that. The fix that I would like requires legislation, but it is to give a patent monopoly to the company that began the FDA certification process first. That would both meet the needs of medicine, and also remove the current broken incentives that make it impossible to get anyone to pay for testing of treatments that are not covered by patents. (As an example, helminthic therapy for a variety of autoimmune disorders is extremely unlikely to go anywhere because there is no patent protection under which the costs of FDA trials could be recouped.)
Now on obviousness, I agree that it is hard to judge after the fact, once you have seen the idea. Secondly what is obvious very much depends on who it is who it is obvious to. With my math background, things are often obvious to me that aren't to other programmers. But which are obvious to anyone else with a similar background. Of which many exist. What is the appropriate peer group to judge, say, a contribution that I made to an advertising system?
This is why I would prefer a system where the patenter has to supply evidence that it could have been discovered, but wasn't. Contrary to the KSR test, this should make it easier to get a patent in a field that is slow moving rather than fast moving. Which I think is appropriate. A field that is already seeing innovation doesn't need patents to encourage more, and will be hurt more by typical patent periods. This is reversed in slow moving fields, where long patent terms are not such a problem and which could probably use the incentive more.
On patent trolling, I've seen estimates of the cost of patent trolling to the tune of around $30 billion a year (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210 for a citation). If you assume that there are 4 million software developers in the US with an average salary of $90k/year, that's 1/12 of the total salaries of all software developers. This is a pretty big priority. Now not all of that money would have been spent on research, but it is a pretty safe guess that patent trolling does reduce month available for research by several billion dollars a year.
Why is patent trolling too easy and profitable? Well because the bar to getting bad patents is too low, it is too easy to threaten people, and even if you think the patent has no merit, the risk of it being ruled valid after all are high enough that most companies roll over, and then there is the fact that you know you'll likely face the troll in courts that have historically been extremely friendly to patent trolls. East Texas and then the Federal Court. Though, luckily, the first court is unlikely to have the same clout going forward that it has historically.
On unclean hands, because patent trolls register a company per patent. So odds are that the company going after you has never actually has a lawsuit go through trial. And even if you go through the effort of getting them declared a vexatious litigant, the next patent troll owned by the same umbrella company and represented by the same lawyer is unimpeded. It is theoretically possible to go after the lawyers involved for barratry, but I do not know of anyone who has done so.
And as for changing core elements of the patent system and affecting other industries, I believe that the changes that I suggest would actually work out well for multiple industries. Though admittedly one of my suggestions is an entirely new type of protection to cover the needs of medical research.
I stopped there. Re-read your posts. An insincere half apology isn't good soil to grow a strong conversation from. Good luck in the future and thank you for your interest in the field.
I'm sorry that you do not believe that I have treated your points charitably.
First on encouraging progress, it is a complex set of issues.
For basic research I'm in agreement with https://issues.org/perspective-is-the-bayh-dole-act-stifling... and the successful approach outlined at https://www.chronicle.com/article/Michael-Milkens-Attack-on/... that progress is maximized when we fund lots of ideas, make them share information quickly, and let them build on each other. The incentives of patents run exactly opposite from that. If we're paying for basic research, I do not want it locked away in patents. (Obviously private research is a different story, companies need an incentive to engage in that.)
Next there is the problem of pharma. The challenge here is that proving effectiveness and safety to the FDA's satisfaction is extremely expensive. Patents are their route to recouping that. The fix that I would like requires legislation, but it is to give a patent monopoly to the company that began the FDA certification process first. That would both meet the needs of medicine, and also remove the current broken incentives that make it impossible to get anyone to pay for testing of treatments that are not covered by patents. (As an example, helminthic therapy for a variety of autoimmune disorders is extremely unlikely to go anywhere because there is no patent protection under which the costs of FDA trials could be recouped.)
Now on obviousness, I agree that it is hard to judge after the fact, once you have seen the idea. Secondly what is obvious very much depends on who it is who it is obvious to. With my math background, things are often obvious to me that aren't to other programmers. But which are obvious to anyone else with a similar background. Of which many exist. What is the appropriate peer group to judge, say, a contribution that I made to an advertising system?
This is why I would prefer a system where the patenter has to supply evidence that it could have been discovered, but wasn't. Contrary to the KSR test, this should make it easier to get a patent in a field that is slow moving rather than fast moving. Which I think is appropriate. A field that is already seeing innovation doesn't need patents to encourage more, and will be hurt more by typical patent periods. This is reversed in slow moving fields, where long patent terms are not such a problem and which could probably use the incentive more.
On patent trolling, I've seen estimates of the cost of patent trolling to the tune of around $30 billion a year (see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2091210 for a citation). If you assume that there are 4 million software developers in the US with an average salary of $90k/year, that's 1/12 of the total salaries of all software developers. This is a pretty big priority. Now not all of that money would have been spent on research, but it is a pretty safe guess that patent trolling does reduce month available for research by several billion dollars a year.
Why is patent trolling too easy and profitable? Well because the bar to getting bad patents is too low, it is too easy to threaten people, and even if you think the patent has no merit, the risk of it being ruled valid after all are high enough that most companies roll over, and then there is the fact that you know you'll likely face the troll in courts that have historically been extremely friendly to patent trolls. East Texas and then the Federal Court. Though, luckily, the first court is unlikely to have the same clout going forward that it has historically.
On unclean hands, because patent trolls register a company per patent. So odds are that the company going after you has never actually has a lawsuit go through trial. And even if you go through the effort of getting them declared a vexatious litigant, the next patent troll owned by the same umbrella company and represented by the same lawyer is unimpeded. It is theoretically possible to go after the lawyers involved for barratry, but I do not know of anyone who has done so.
And as for changing core elements of the patent system and affecting other industries, I believe that the changes that I suggest would actually work out well for multiple industries. Though admittedly one of my suggestions is an entirely new type of protection to cover the needs of medical research.