I didn't understand the obviousness test and now I do, thanks.

And therefore it is the name of test itself that is one of the horrific failures in this debacle.

What you described is not at all an obviousness test, it's a prior-patent test. It simply asks, has this been patented before in other ways? So it has nothing to do with whether it is obvious to someone skilled in the art. It's a red herring to think that this is testing obviosity. (ahem, new word.)

And hence when you say " maybe it's not obvious, even if in hindsight it looks simple. Maybe the solution is brilliant in its elegance and simplicity."
Right, and the answer to your Big Maybe is - unmeasurable, unreproducible, and based utterly on opinion. And therefore is a farce and incites argument from the get-go, no matter what the USPTO calls it, to try to test for it that way.

But thanks for helping me to understand why the software obviousness test has failed so badly - because it doesn't test obviousness and therefore hasn't failed. It only tests to see if it is already patented in a different form. But that makes me wonder if the test itself can be challenged, because it doesn't test at all what it implies that it tests. And if the intent is truly that obvious things should not be patentable, then the definition of the test can be proved faulty - it's obvious to me that it can ;)

" Copyright is next to useless for smaller programmers, because it's protecting the wrong thing. Basically, copyright protects the exact work,

In my never-to-be-humble-opinion, it's the exact work that should be protected, not the idea that lead to it. Because there's only two things in my job - the idea I'm trying to implement, and the code that implements it. If I'm not protecting the code, then I'm protecting the idea. So software patents are idea patents, because they are all ideas with "on a computer" appended to them.

Event-driven programming is HELL, except for interfaces. Every once in a while a DB trigger is justified, but event-driven languages have failed time and time again because... it's impossible to predict what will happen when and avalanche of eventual complexity causes the system to implode under its own weight.

For a programming language to make the cut, it must be utterly predictable down to the last side-effect.
 

I would love to agree with you, because to me they are all obvious. But the problem lies in the test itself - it is not at all measurable. It is based entirely on opinion, and thus it varies based on the particular "expert" testimony. And what is obvious this year may not have been obvious last year, and that makes it un-pin-downable to me. To me it is a losing battle to try to strike down patent by patent on obviousness. They can go either way, and so it is a never-ending battle, and the lawyers get richer. The only realistic way to approach obviousness is to argue its fallibility, bias-proneness, and slippery-slopedness in general, and strike it down as an untennable test, which must be either replaced with an unbiased, independently-reproducible test, or the system must be revoked as a whole as unfair.

And since you are obliviously experience and open-minded about this, what do you think of that approach?

Snowden leaked NSA opinion on TOR here:
http://www.theguardian.com/world/interactive/2013/oct/04/tor-stinks-nsa-presentation-document

Slashdot reporting here:
http://slashdot.org/story/13/10/04/162254/how-the-nsa-targets-tor

let's hear it for American Exceptionalism...
http://www.youtube.com/watch?v=3eooXNd0heM

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.