Comment Re:What the hell is going on a the USPTO? (Score 1) 58
I don't think the problem is software patents. The problem is stupid patents. Like, I patent exactly the same thing everyone does, *but on a bicycle!*. The examiners seem to have completely forgotten the basic premise, which is that you cannot grant a patent to something that a person with an ordinary skill in the art could come up with based on prior art.
They haven't forgotten it - what they realize is that they have to prove that a person with ordinary skill in the art could come up with the claimed invention based on the prior art. It's not something as simple as a gut feeling of "this is obvious", particularly because they get that gut feeling after reading the patent application. If it's a really well written application, super clear with tons of explanatory diagrams and examples, the end result should feel pretty obvious, in hindsight... but that says nothing about whether, one day before without reading that application, someone could come up with it.
So, they have to prove obviousness using evidence that was available on that previous day, and specifically, if they can show that all of the elements in the claimed invention were known on that day and could be easily combined, then it's obvious. So, for example, if peanut butter sandwiches are known and riding bicycles is known, then "eating a peanut butter sandwich, but on a bicycle!" is obvious, even if no one has ever done that particular combination before. The question is where there's some element of the invention that no one actually has ever done before - turning at an intersection based on a degree of tire rotation to peanuts crunched per bite ratio exceeding a threshold - then proving that that is obvious gets a lot tougher.