I'm a patent agent and I worked in Google's Patent Litigation department. This is a slight hyperbole, but only slight: I can bust any software patent. I found the prior art that prevented Google Maps from being shut down in Germany:
@btrettel is right that examiners need more time, but that would mean the PTO would have to hire a lot more of them. A better solution is just to change patentable subject matter to (effectively) exclude computer software. Congress will have to do this since the courts and PTO are unwilling or unable.
As for @blobbers below: patents are not a shield against trolls. They're only a shield against your competitors who actually build things. Trolls don't want your patents; they only want your money.
Lastly, as for the tools: I was told, 10-12 years ago, that when it was suggested that examiners use Google as well as their mandated tools, the union objected that this would be more work and they'd have to be paid more. Perhaps this is no longer true, and I know that the conscientious ones always did.
> change patentable subject matter to (effectively) exclude computer software
I don't necessarily disagree with you, but what makes software unique in that it would be effectively excluded by changes while other subject matter (presumably) wouldn't be affected?
> what makes software unique in that it would be effectively excluded
I can answer this:
1) Because software is already covered by copyright.
2) Because any given idea or concept in software can be implemented an infinite number of novel ways. Patents only cover specific implementations of an idea... Not the idea itself.
Let's use Amazon's One Click patent as an example: How many different ways do you think that could be coded/handled? How many different programming languages could be used to make it work?
If the One Click patent was actually specific enough to not be a broad concept (as required by patent law) it would include the actual code that makes it work. That's the software equivalent to an engineer's blueprint. However, if you look at the patent claims (https://patents.google.com/patent/US5960411A/en) you can see that every single claim is just generic nonsense (e.g. "The method of claim 11 wherein the client system and server system communicate via the Internet.").
Even if you add all the claims together and examine the patent as a whole you still get nothing but a broad concept on the idea of clicking once to place an order. Repeat after me: PATENTS ONLY COVER SPECIFIC IMPLEMENTATIONS OF IDEAS, not the ideas themselves. Which is exactly what every single software patent that exists defines: Nothing more than a broad concept.
You could require that patents provide the actual code that makes them work but then they'd be worthless because any given bit of code can be implemented an infinite number of ways. It would be trivial to change a for loop to a while loop or wrap things in functions or even something as simple as using a different programming language. Any of those things and more would get around a patent on a specific implementation of software, aka "code".
The list of "patentable subject matter" ("101" to insiders) is a legislative decision, i.e. a political one. The Congress doesn't need an ironclad reason, but there are plenty. The Constitution just says:
Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
It's simply a matter of Congress using its power to decide that the "useful art" of software does not need patent protection.
Pure mathematical formulas are already excluded from patentability.
And now yet another election is happening where Congressional and Senatorial candidates are not asked to support or oppose this proposal.
This is how it's going to happen, if it ever does. A bill gets introduced, the Establishment runs op-eds against it, and the battle is joined.
We’re still in the first decades of the profession. You should get a patent for describing a solution that would have gone unknown for twenty-ish years, not a land grab on the easy problems we haven’t looked at yet (or weren’t worth writing down).
What are your thoughts on Alice? I thought that precluded most software patents from being valid. It is a fairly recent precedent, though, so the common knowledge about software patents is still very much about the pre-Alice world.
SCOTUS keeps slapping down the CAFC, and the CAFC just keeps weaseling their way out of it. It will take clear legislative direction to slay this dragon once and for all.
In general exclude enforcing patents where another implementation doesn't directly decrease the patantee's revenue. And most of the software falls in this category. Most of the patents used by the trolls don't even have implantation, let alone revenue.
https://www.themarysue.com/google-maps-facing-german-ban/
@btrettel is right that examiners need more time, but that would mean the PTO would have to hire a lot more of them. A better solution is just to change patentable subject matter to (effectively) exclude computer software. Congress will have to do this since the courts and PTO are unwilling or unable.
As for @blobbers below: patents are not a shield against trolls. They're only a shield against your competitors who actually build things. Trolls don't want your patents; they only want your money.
Lastly, as for the tools: I was told, 10-12 years ago, that when it was suggested that examiners use Google as well as their mandated tools, the union objected that this would be more work and they'd have to be paid more. Perhaps this is no longer true, and I know that the conscientious ones always did.