A Patent Reform Proposal

TL;DR I propose patents only be awarded for ideas that have been economically feasible for 20 years and yet have not been developed

I believe that patent law could be reformed in such a way that many of the current problems could be eliminated while the benefits that patent law was intended to produce would be achieved.

I heartily believe in writing for the short attention span, so I'm going to summarize first (the basic idea, the argument behind it, and the purpose of having patent law), and then flesh out in more detail below.

Summary

The basic idea is this:

The person applying for a patent would need to prove that the invention had been economically feasible with broadly available technology for 20 years, and yet had not been proposed or created.

The basic argument behind this modification is this:

The most contentious question about the worst patents is the question of "obviousness".  When someone argues that their invention is non-obvious, the examiner could say "no, really, that's just a pathetically obvious idea" and the applicant can then say "it's only obvious to you because I showed it to you".  [IIRC there is a court decision that ends this exchange with "check mate", but I'm not going to look it up right now.  I'll put it in this space if I ever do--possibly also removing this squarenthetical.  You've been warned.]

I believe that a fair and objective answer can be made to this question by the applicant instead being required to reply with "as we have shown in the supporting documentation, none of the technology that we are using to do this with is recent.  We've made a clear case that an economically sustainable business could have been run, 20 years ago, using this combination of then-extant technologies, if only someone had the idea to do so."
The proof that the idea is not obvious is, basically, that someone could have made money on the idea, but no one has.

The purpose of this patent law is this:

Suppose I had an idea--maybe a way to bend a broom handle in such a way that sweeping is more ergonomically efficient.  If I can't patent that broom handle shape, I might as well not even try building a business that makes them, because anyone that makes brooms could retool to make a broom like mine far before I would start turning a profit and having any hope of competing.  Law like this would give me motivation to get a good idea out into the world.

Discussion

Damage to the industry (and, by extension, the consumer)

If you're not aware of the damage that patents [as they are now] have done in the software and mobile phone industry, a quick search will probably do better justice to the problem that I can do here.  I can share one example I know from a combination of well-documented accounts and personal experience.

When a new, younger software company becomes successful enough to get onto the radar of its larger competitors, one of the easiest ways for the larger company to fight the smaller company (without doing anything that would benefit the consumer, like out-innovating the smaller company or lowering their prices in order to keep customers) is to take a cursory look at what the smaller company is doing, then look into the stable of patents that the larger company has been accumulating and see what they can accuse the smaller company of infringing on.

You can read about how IBM did this to Sun in this classic first person tale:  http://www.forbes.com/asap/2002/0624/044.html .  You can also just do a search for "patent shakedown" and see how often this pattern is repeated.

What they are doing is obviously unfair, and it ought to be stopped because of that.  But it doesn't stop at unfair.  It damages the entire ecosystem of the industry by encouraging waste.  Knowing that this is coming, a company that starts to actually provide real value to a large number of consumers must prepare to defend itself from the onslaught that is sure to come by creating their own stable of defensive patents.  The smaller company will money on lawyers and the time of its most creative employees trying to patent every idea they can in order to have a defensive wall that can be raised when the aging titans notice the smaller company's superior innovation and service and come with the patent cudgel to put them back in their place.

The motivation for having a patent system is to encourage ideas and products to come to market that otherwise would not.  Patenting obvious ideas, like the electronic version of a shopping cart or saving a user's payment data so that they can buy things with fewer mouse clicks, does not encourage the development of new technologies and products, but hinders them.  Someone was going to stumble on to One-Click in an effort to reduce the number of actions required to buy.  Reducing the number of actions required to do anything is one of the most common ways a user interface is improved.  If the thing we're trying to streamline is something as critical to the company as "customer buys an item from the store", you can bet that someone is going to stumble onto the idea of "let's make it easier to do that--can we reduce the number of actions?".  And where is that going to go?  To the smallest number of actions, which is one.  Ergo, one-click.  With the one-click patent in place, you have to make your user interface less efficient--every single consumer going to any site in the world that hasn't licensed this patent will have to jump through unnecessary hoops or risk a shakedown visit from the paten holder's lawyers.

This makes everything more expensive for everyone.

What about liberty? Shouldn't patents be abolished altogether?

Some advocates of liberty have brought all forms of intellectual property under attack.  If you've decided that anarchy is the only true form of liberty, you must attack intellectual property as either a bad thing or a thing that doesn't produce enough good to warrant the structures required to enforce it.  You can't really have intellectual property in an anarchical society.

In my opinion, the abolishment of intellectual property would be an unnecessary imposition on liberty.  With intellectual property laws, you are free to enjoy the benefits these laws bring.  If the intellectual property laws are well constructed, the imposition on liberty is minimal.  Intellectual property law should be constructed in such a way that, functionally, those who choose not to participate in it can simply ignore it.  The laws we have now don't work that way--simply by doing your job as a high quality software or mobile communications engineer, you are probably infringing on some patent somewhere.  That ought not to be the case, and that is what my proposal is intended to fix.  By removing the results of obvious, natural, ordinary progress from consideration for patent protection, you end up only patenting things that, arguably, would not be brought to market without the patent system in place.

Ideally, the only things that would be patented would be things that the world/industry/community had time to invent, but didn't. 

It's a trade-off, but, I think, a reasonable one.  By not allowing anyone to to have control over a large enough patch of land to have an orchard, there is an increase in liberty, in the sense that everyone always has the same right to access that area of land.  But there is also a decrease in liberty, in that everyone is also derived of the products that would be produced by an orchard.  Food grows wild; people create things for the joy of the act of creation.  We could simply tell everyone that they must be content with the things that grow or get created in those ways.  But the liberty to enjoy products created as a result of intellectual property laws is also a liberty--it is disingenuous to argue otherwise.  I feel that these laws can be altered to create a net increase in liberty, and that is what I'm arguing for here..