I am in the middle of some patent applications in the US at the same time as all the recent press about patent "trolls" going after small (and large) iOS developers. These things have made me think more than usual about the patent system. I think the root problems are the following:
- Legal costs or defending your patent or yourself from someone else's patent affect the whole patent system. And not for the better.
- Patents were meant to protect an inventor from copycats... under the aparent assumption that nonone could independently come up with something near-identical to another invention. That is: you should really only be able to patent things where the likelihood of an independent near-identical invention are slim-to-none. There is nothing in the system that requires you to prove something is a copy... it is just assumed and this works really poorly today, especially in software, where people come up with the same thing independently all the time.
- The key term defining what is patentable, "non-obvious to someone skilled in the arts", has eroded significantly. I believe that both the level of "skill" and how much research is required for something to be "non-obvious" have been lowered. Sometimes to ridiculous levels.
I believe the only long-term solution is to invalidate a whole lot of patents and to create a body doing these invalidations without the economic problems associated with lawsuits and courts. This is going to mess things up for a lot of companies and I am skeptical that we'll ever see a significant change.
The applications I have written should probably not be granted patents, ethically speaking. On the other hand they are no worse than many many patents already granted and the lawyers see it as a sure thing that we'll be granted these patents.
It is a very wired position to be in.