It seems I meant "undue hardship" - I didn't know that was different from "undue burden," because I'm not a lawyer, but it sound like you are - that's great. :) And this makes more sense because it seemed weird that it was a constitutional test.

So if undue hardship is "Special or specified circumstances that partially or fully exempt a person from performance of a legal obligation so as to avoid an unreasonable or disproportionate burden or obstacle." then how could that be applied? Do you think it could it be used as a defense in an infringement case?

From what I could find, it seems patent litigation is implicitly excluded from normal E&O insurance, and on new policies for tech firms is explicitly excluded, due to the high cost of patent litigation and the scale of the potential damages. Also, it is excluded from commercial general liability (CGL) insurance, and this has been upheld by the courts.

Interestingly, you -can- specifically get patent infringement insurance, but it is "generally considered too expensive to be worth the cost." (http://en.wikipedia.org/wiki/Patent_infringement#Patent_infringement_insurance)

And insurance seems like such a reasonable idea and a great solution. I wish it were practical. But hell. if the insurance companies won't even insure us for it at reasonable rates, then that is the "we ain't touchin' this cause it will make us broke" stamp that provides the undeniable proof that this system is an impractical nightmare.

1) the interest to create and sell a software product of my own choosing, and derive my livelihood from it.
2) the interest of the government to foster innovation and progress

If I can't create -anything of significance- without impinging on a patent (and I believe that to be true), then the system prevents me from creating anything of significance and both of these interests are destroyed.

far too low. Most of what is patented, in my opinion is obvious. Even the MP3 encoding algorithm to me is obvious. I can barely imagine something software-related that is not obvious.

Does that make the system wrong, or does that make me someone with extra-ordinary skill, or does that make me delusional? Along with a million other coders?

And is the bar for ordinary skill static in the software industry? No, it changes every year. So if a patent is contested on this basis, how is it verifiable years later? These things seem obvious to me, but I guess I have above-average skill, just like almost everyone else.

that the simpler or more generic the idea, the more time-consuming the search becomes. Because 1) the simpler the idea, the more likely it is that it has already been thought of, and therefore more likely to be patented, and 2) the simpler and more generic the search terms are, the more hits are returned in a search. So this means the simplest of ideas are the hardest ones to verify, and there are many many more of them in a program.

I tested my theory by searching the USPTO database to see if the idea of a calculator program is covered by any patents. Using the Google patent search engine, the search results were overwhelming:

https://www.google.com/search?num=100&site=&tbm=pts&source=hp&q=calculator+program+&oq=calculator+program+&gs_l=hp.3..0l10.6707.22776.0.23191.31.23.6.2.2.1.221.3044.5j17j1.23.0....0...1c.1.32.hp..6.25.2141.3USxvlIs4TQ

I tried reading the first one and gave it an honest try to determine if it covers a generic calculator program, and it seemed to in places, and in other places it seemed not to cover it, But that leaves me with an even larger quandary, if parts of it encompass the generic calculator, does it encompass the generic calculator? So even on the very first one, I would need legal opinion. This is out of my league; in no way can I be expert enough nor have time enough nor resources enough to perform a patent analyses encompassing enough to determine if I should write my generic calculator program. The programming is far more trivial than the search.

Using the USPTO search tool was even worse, I could not even verify that my search was finding what I was looking for.

You could argue that I should then \hire an expert to determine this, but that seems to corroborate that this is an undue burden with somewhat similar legal president, because the IRS is required to make tax filings for individuals able to be reasonably filled out by the individual and not be required to hire an expert to file their taxes for them. Of course a business is different, but to me the burden here is orders of magnitude higher than with a tax filing.

fashioned by the Supreme Court. The test was developed in the 19th century and is widely used to determine if a law or requirement is constitutional.

More here: http://en.wikipedia.org/wiki/Undue_burden_standard

It seems a fait-de-complete that this -is- an undue burden. But sincerely, how could this not have been challenged already by giant corporations on this basis?

As a developer of original software products, I consider it impossible - just my opinion - to determine if any software I create infringes on existing patents. There are usually thousands and often tens of thousands of ideas, algorithms and design approaches in a product that would need to be checked, and patents are so wordy that the time it would take to determine if there was infringement would always far exceed the time it takes to make the product. This seems to me to pose an undue burden, and is therefore unconstitutional?

Does anyone have any thoughts on this?