Talk:Software patent quality worse than all other fields
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I wonder what the right split is for these topics:
- Software patents produce legal uncertainty
- Software is too abstract, software patent quality is terrible
- The disclosure is useless
- Infringement is unavoidable
There's currently overlap. Ciaran 20:25, 21 August 2011 (EDT)
 Text to be reviewed
The "Possible reasons" section has gotten long and uninteresting. I'll move most of the text here, parts can be put back into the article if they're reviewed and improved (usually: shortened).
- US Patent law merely asks a patent invention be non-obvious to a person having ordinary skill in the art. This is a very low standard almost implying that almost anyone practicing in the art would come upon that invention given a few years time if not minutes or hours. We need only look at the bell curve to see how many things that would be obvious for many on the top third (or top half) of the curve would be eligible for a patent by not being obvious to those in the central region (or exactly in the middle). This might not be a major problem for society and for other inventors if you have to have 100 million dollars to build a business off your invention, but it is a problem for cheap software cloned and distributed essentially for no cost since anyone can play.
- The low bar to inventiveness and significant power grant that is a patent encourages inventor-lawyers to dumb down and broaden the patent claims as much as possible to increase scope of infringement. The effect is that even a genius idea will get watered down to just barely meeting the minimum criteria of non-obvious to a PHOSITA so as to maximize the ROI. [Why is this dumbing down incentive particularly large for software? The power that comes with a software patent is particularly large and dumbing down is particularly easy. See other points for more details.]
- The very large number of software creators means the likelihood is that much greater that a patent will be gotten on broader dumber idea. This is because with more people a more diverse range of quality will make itself to the patent office first. Additionally, it's easier and faster to write the broader more dumb patent, and this trumps the more precise patent if the dumber one comes first. [So this is a case where competition brings the average quality down! This detrimental effect exists because being first means everything (20 years). Ordinarily, being first to market means some (or means nothing if all you have is a broad idea), but being better a year or two later means a fair amount. Unfortunately, no such balance exists with patent exclusivities.]
- Too much public FOSS exists and is created daily for the patent examiner to become familiar with it on a daily basis. If it is virtually impossible to read all new patents and understand them, it is even more difficult to read all public source code and understand it and its implication as prior art. Also, FOSS is a relatively new phenomenon.
- The nature of software means that every bit counts. Changing very few details (even the average tiny one) can cause a product to fail: many details must be specified precisely. With most physical materials, this is certainly not the case, so a standard way of describing inventions arose where the smallest of details (and even medium ones) could be discarded in the patent claims language. The result is that patent claims on software are very sloppy and broad relative to the degree of detail needed to properly implement the invention. [Related to this is that a great many variations are possible, each variation requiring a full analysis for correctness rather than simply changing the blade on the saw or pigment concentration in the dye and then ignoring the huge number of small variations that could arise. Software has already been digitized, and the computing machine is generally very demanding on accuracy because of its "stupidity".]
- Software inventions are not limited by Mother Nature. This means creating an invention can be like writing fiction. Conjure it up, and it can be created. [Related to this is that, with software products being manufactured by so many, a patent author can be extra bold and not worry as much about being too far ahead of the times.] [Together all of this points out that software develops very fast, which adds to the relative contrast pointed out earlier of how newly created software is rich in details relative to the descriptions in the patents.]