They need to separate innovation into two piles based on whether an innovation would have/could have happened without that party and (though this seems to be easy to forget).
That's what these laws are supposed to be doing. The problem is that this is a job that legal systems (laws, lawmaker, courts, etc) are not well suited for. Even if you leave aside problems like big patentholders in existing industries & companies out-lobbying potential future beneficiaries of reduced patent protection (future businesses & consumers) it would be hard to make laws that woud do this job effectively. Laws that will do the job effectively for generations are virtually impossible.
I think that Apple did do something with iphones that may not have happened without them. That said, I don't think that any of these specific patents capture that.
RE: it would be hard to make laws that woud do this job effectively
- Playing devil's advocate, doesn't law ultimately assign this task to humans? ie, the patent office? And reviewers?
- Clearly, the reviewers are outgunned. Both intellectually, and tactically. For example, the trend of making overly broad claims. This can effectively mask the prior art. It makes a "needle in a haystack" problem for the reviewer. By generalizing the case, when the prior art is specific examples.
I think the task has to be shared which is how it is set up to work. Patent office employees & judges are people.
But, laws don't just lay out their goal and let people get to work. They break it down into much smaller judgments. Things like novelty, non-obviousness, subject matter & applicability.
"Would have probably been invented regardless of patent law" is to vague to be a law and too difficult to ask bureaucrats to ascertain.
Ideas of "principle" vs "rules" based decisionmaking have a long history of debate. As you note, writing perfect rules to cover all scenarios ex-ante is nearly impossible.
That leaves us the task to debate virtue of new and existing principles, and find a way to incorporate discretion and expertise. The issue is making sure that discretion doe not get manipulated/gamed as well.
How do we do that?
Society today is very much every man/special interest for himself.
It could also be that the system of laws, lawmakers, courts & bureaucrats is just not very good at this sort of thing. Imagine that for some reason we needed this system to make decisions based on niceness or sexiness.
They need to separate innovation into two piles based on whether an innovation would have/could have happened without that party and (though this seems to be easy to forget).
That's what these laws are supposed to be doing. The problem is that this is a job that legal systems (laws, lawmaker, courts, etc) are not well suited for. Even if you leave aside problems like big patentholders in existing industries & companies out-lobbying potential future beneficiaries of reduced patent protection (future businesses & consumers) it would be hard to make laws that woud do this job effectively. Laws that will do the job effectively for generations are virtually impossible.
I think that Apple did do something with iphones that may not have happened without them. That said, I don't think that any of these specific patents capture that.