The core problem is that for someone knowledgeable in the field, everything becomes straightforward, but the further away you are from the field, the more novel it becomes -- this is true across the board. Even the great accomplishments where people win Nobel prizes, often it can be argued that it was going to happen anyhow because it was the next step in scientific progress given the context.
Thus defining "non-obviousness" is super hard to do -- because it is all context dependent and humans are like a million monkeys inventing everything that can possibly be invented in aggregate.
It is not true that anyone knowledgeable in a field finds everything in that field straightforward. For example, Schoof's algorithm for counting points on elliptic curves was so non-obvious to relevant experts that he struggled to get his paper through peer review. Diffie also struggled to get his ideas about public-key cryptography published because experts in relevant fields did not understand how such an idea could even make sense. Another example is Gentry's original FHE construction, which was not at all obvious even to experts in lattice theory or any other relevant field of cryptography or math. It pains me to say this, but Bitcoin is also an example; check out the response on the cryptography mailing list, where several prominent experts in the field were confused by the concept of electronic payments that do not require any bank to issue and redeem the money.
Those are just what I know off the top of my head from my own field. While there is plenty of incremental research in any field and plenty of situations where a motivated expert would have arrived at the same basic concept, it is not outlandishly uncommon for a truly novel, non-obvious idea to be presented. The problem for patent examiners is that they are not experts and the pace of software innovation leaves them baffled by the applications they are examining; there are also too few patent examiners to handle the volume of applications that are submitted.
One way to address the problem is to just abolish software patents entirely. Software was never meant to be patentable, at least not if you recognize software as a form of applied math (happy to argue this one all day long) and accept the idea that math is not (or should not be) patentable.
Controlling volume to a set of speakers via a remote is something we’ve been doing in the analog world for decades. So a general patent on volume control across speakers should be invalidated.
It only becomes novel due to the details of the tech. But even then you could implement the solution in various ways and I can’t imagine every potential method was patented.
So, while I agree the non-obvious can be hard to define. But with patents like this I don’t think we’ve found the right balance.
At a previous company, we had to _add code_ to our software in order to avoid violating a patent. Yes, if we just let our system do what it could, that violated a patent. We had to check for a certain condition, and disallow the generic system from doing a specific thing, in order to not get in trouble. Sorry, but that's insane.
I dealt with a manufacturing patent where you had to align certain parts off-center, because lining them up was patented. Of course it didn't really matter how you did it. Hence a subsequent patent was eventually actually awarded to someone else to manufacture them off-center. Which was far worse if you think about it. The first patent claimed a unique point. The next one claimed the entire three-dimensional volume of possible alternatives--minus that unique point.
The patent in questions covers using a controller device on a LAN which presents a UI to the user to raise, lower or mute/unmute volume which then raises, lowers or mutes/unmutes the volume across a set of speakers grouped together on the LAN. It does not cover a specific method of doing this. Any method accomplishes the above would be covered by the patent.
I feel like "using a UI that communicates over LAN", on it's own, isn't something that should be patentable for anything at this point. That's just basic network communication now. Now, if the device being communicated with did something interesting maybe there is a case on that end, but I'm not familiar enough to comment.
give a bunch of experts the claims in the patent and not how the patent implements the claim.
If the experts can find a way to implement the claim in a relatively short period, then the claim is obvious and should be rejected.
Of course it is possible that a more specific claim is not obvisous. For example, if there are specific performance requirements. If the initial claims are obvisious, the inventor can try again with more narrow claims.
Another requirement that is sorely needed is that an expert in the field can actually understand the patent in a reasonable period of time.
that's not really going to work though.. there have been (and must still be) tons of "obvious" solutions to well-known problems..
So if you could simply "give a bunch of experts the claims in the patent" and have them actually come up with something.. Well, then it'd be trivial to simply rewrite existing unsolved problems in "claim of method to solve problem" and they'd magically be able to solve it?
The problem is that obvious solutions become obvious only when they arrive, and not before.
Even framing a problem so that it can be solved is an example of this.. There are lots of problems that only appear after their solution. Before the solution, they weren't problems, but simply "how things are". Like, right now, we've not solved death, so for most people, it's not really a problem, it's just how things are.. If we solve death, future people will look back at us in disbelief: (You try to tell me people just DIED? and the entire world didn't unite to fix that? what the fuck was wrong with them? guess they got what they deserved..)
I'm just saying, that if your claims have obvious solutions, then the community has no need for your patent. The patent has to solve something that is not obvious.
For the community, it is only worth granting a patent if the community gets something back in return. And that is, solving a problem we don't know how to solve. Obviously, that can be with efficiency parameters. If the simple solution is 50% efficient and the patent claims 90%. That may be worth the patent. And everybody else can keep using the 50% efficient solution.
In your example, if you now come up with a patent that solves death, then no expert will be able to find a solution in reasonable period.
If you can then show a working version that solves death, even if it is completely obvious in retrospect, it is worth a patent.
I like this idea, but the pro-patent argument says that some things become obvious only after you see them. Once a company starts selling a product with the new idea, everyone will figure it out, and it will become part of the set of things that are obvious to experts.
In my opinion that's not what patents are about. Patents are about how to do something. The obvious purpose is that revealing your patent advances the state of the art.
Otherwise, why would the community grant a relatively long term (about 20 years) of monopoly? It doesn't make sense to do that just for a clever business idea.
I basically agree with you. The counterargument says that some innovation simply doesn't happen for centuries, until it finally occurs to someone. You want to incentivize those kinds of innovations as well, to get people to revisit old issues. For example, the stirrup. Evident once you see it, but a big innovation, or it would have shown up centuries earlier.
A lot of things once explained seem obvious, but clearly weren't or they would have existed before.
I like to explain it as similar to wheels being circles. Of course that is obvious once you see a circle shaped wheel, but the insight to do that in the first place is the novelty element.
Similar advances are happening in every little niche industry and novelty implies non-obvious.
The problem is that things that are already well known and obvious are being granted patents because “but with software” gets tacked onto the end.
“Control a group of speakers” - not patentable
“Control a group of speakers, but with software” - patentable
Maybe there’s some really interesting way Sonos controls speakers with software that should be patentable. But “with software” is not novel on its own.
This is certainly the ideal scenario. But typically, they didn't exist before because they are incremental improvements based on things which didn't exist before and use technology which didn't exist before.
The claim that they are obvious is based on the fact that anyone who is involved in the production of those prior incremental steps can see what can be done as the next increment. People are working on producing wheels using molds and certain materials. Across town, someone starts selling a new kind of mold or material. The "inventor" applies it to the molding of wheels.
The difficulty is that it is really hard to claim something as obvious/non-obvious once you know about it. Basically can't determine if it is something that was incremental based on progress -or- if it just seems like that now that you know about it in hindsight.
Agree with your point though, and it may just be one of those impossible questions which is why the patent office struggles with how to make these decisions.
I'm having trouble thinking of examples of what you mean. It's not like people invent new branches of math to make a patent like with revolutionary ideas in physics. Do I get 6-12 months (or even more) working on the same problem and subject to the same constraints and available technologies the inventor had? A really "prophetic" idea can probably be identified as such because it's far too ahead of its time to get patented or used anyway.
But when it comes to money-making patents, I think of technological development as an optimization process where everyone has the same objectives and a pretty limited search area at each point in time (available technologies you can use, textbook knowledge you can draw on). I'd generally expect any smart and dedicated person working on the problem to find the next best next steps sooner or later (certainly far less than 20 years).
It is a hard idea to correlate since you can't unwind knowledge. I think your idea around giving a person X time to come up with solution could work if the patent office could afford that.
Maybe take a 3rd party who is unaware of the patent/novel idea and then asking them how to solve for some generalized version of the problem that a patent states it is solving and see what happens.
Similar to black boxing that companies will do with tech that may have been shared under restricted terms.
I've been in the same niche for years and can certainly tell you what I could and couldn't figure out. There's no magic in what I do, else only 23 year-old geniuses who think outside the box would be dominating all the patents. Even nobel prizes are on average awarded for work done at middle age.
Just do peer review and get experts' opinions. Don't tell them how to make it work, just tell them what it does. E.g. make the inventor provide a carefuully-worded abstract. By the way patents that claim the category of problem itself as the invention (as opposed to the specific method for solving the problem) are another big problem that needs to be eliminated. Those broad first claims are the ones shot down in challenges. For example "use a computer to processs transactions", or even "use a convolutional network to classify faces". These are not inventions; they are problems that still need to be solved, and it can be done many ways.
Anyway if you're uncertain about 6-months, how can you justify giving them 20 years of monopoly?
It's about costs, networked speakers for pro-consumers was never a thing it was just too expensive. Until it wasn't and then you obviously had to controll them together.
Thus defining "non-obviousness" is super hard to do -- because it is all context dependent and humans are like a million monkeys inventing everything that can possibly be invented in aggregate.