There was a recent opinion piece on Wired that hasn't garnered enough attention along those lines, titled Let’s Get Rid of Kludgy Patent Fixes and Define the Non-Obvious. Part of a series of opinion pieces on fixing the patent system.

A referenced paper in the Yale Law Journal, The Inducement Standard of Patentability (1.3 MB PDF, 91 pages) by Professor Michael Abramowicz of Yale Law and Professor John F. Duffy of George Washington University has three points made in the opinion piece:

The nonobviousness requirement should bar patents on many software innovations because low costs of innovation plus strong incentives to innovate outside the patent system create a great case for viewing many (but not all) software innovations as legally obvious and thus, unpatentable. The costs of innovating in software are frequently low and falling over time, and incentives other than patent protection (including copyright protection!) are likely to provide very significant non-patent inducements for innovation.

The approach is not difficult to administer, especially given the evidence. Many patent infringement suits – especially in the software industry – target defendants who independently created the technology and never even bothered to seek a patent. That common feature of many suits should itself be considered powerful evidence that patent incentives were unnecessary to induce the innovation, but today such evidence is typically ignored.

The inducement standard promises peace between industries that do and don’t need lots of patent incentives. Consider pharmaceuticals: How often are new therapeutic drugs invented by parties who aren’t seeking patents, and don’t need them to induce their efforts? Not very often at all. The inducement standard helps such industries justify necessary patents … just as much as it helps other industries justify invalidating unnecessary ones.

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