What if both of them put real effort (money) into research and arrived at similar/same place? Should it be dismissed as well? Or is there something as joint patent?

I think in that case, the answer is "too bad, so sad". The patent system shouldn't guarantee some kind of monetary reward. If it does, it sets up the wrong incentives.

Independent invention should be a sign that the idea isn't worth patenting, that it was "in the air" at the time.

> The patent system shouldn't guarantee some kind of monetary reward. If it does, it sets up the wrong incentives.

They don't, unless people use it and the patent holder wants to charge for licensing.

The comment to which I responded seemed to take the view that spending a bunch of money on discovering or inventing something should more-or-less be automatically rewarded with at least a portion of the "intellectual property" rights. That's the concept I wanted to rebut.

I don't have facts at hand, but I imagine that like any other thing (starting a business, writing a book, creating an App) 99.9% of patents result in no monetary gain whatsoever. But if we're going to go all in on the property aspects of patents, then I think that morally and ethically, we have to give an independent inventor a share of the property. Anything else just looks arbitrary, and leads to disrespect of patents, "intellectual property" and The Law in general.

Maybe a joint patent, if they can agree to cooperate.

Like naughty children, either you share nicely or nobody's having any cake!

:)

If two people invented the same thing together (or, more commonly, one person invents feature A, and another invents feature B, where both feature A and feature B are part of one invention), then they are joint inventors (and without an assignment or an obligation to assign, they are both joint owners). On the other hand, if two people invent the same thing separately (e.g., similar research goals at two competing pharmaceutical companies), then the first to file gets the application.

It still must be an enabling disclosure, though. That is, it has to teach the public how to make and use the invention.

Then you could stop each others patents just by filing a copy...

Well yeah, the rules would have to be a bit more complex than that, but do you not like the general idea?

Because I think a whole load of really obvious rubbish gets patented at the moment, but I do think the foundations of the patent system and the utility of patents ought to be salvaged.

You wouldn't know what your competitors are filing within months of it happening and then have any opportunity to do anything about it.

Applications are only published to the public either 18 months after the earliest priority date or after the patent has been granted.

The only other time you might know what they were up to is if they made a public disclosure about the technology. But as that has implications for their own filing strategy, they're not likely to do that in a way that left you an opportunity.

It's not always "that obvious", some ideas just make sense for the time, and there are some seriously low-grade patents filed which barely even qualify as invention anyway. I'd hate to be drawn into some BS politicking at the sake of concentrating on my technology. Look at Leibniz&Newton ... http://en.wikipedia.org/wiki/Leibniz%E2%80%93Newton_calculus...

How is "just make sense for the time" different from "that obvious"?

I read the implication 'that obvious' by the OP as being obviously in cahoots or as obvious derivative works, rather than independent works along the same line of enquiry and execution.

Oh right, no. By 'obvious' I meant that if two people come up with the same thing independently then maybe the thing they came up with is comparatively not that special or innovative, and that perhaps if you have multiple folks in a field coming up with the same ideas then those ideas are not the ones deserving of protection.

--edit-- this would be because patents (in my mind) are the exchange of protection/exclusivity from the state in return for disclosure to the commons of an idea that might never otherwise become known or publicised.

If loads of folks are coming up with the same idea and racing to patent it, that points (to me) to a situation that patents aren't meant to address - giving exclusivity to someone based simply on them being first of many. If many can come up with it, then the deal is lopsided and the exclusivity shouldn't be granted. IMHO.

Yes, I think this is the operative point. If we as a society are going to make this deal -- we are giving the putative inventor an exclusive license to the technology for a substantial period of time in exchange for disclosure of how it works -- we want it to be a good trade. And it's only a good trade if the information in the patent is actually valuable. If there's evidence that that information would still become available in the absence of a patent grant, it becomes clearer that it's not a good trade in this particular case. Simultaneous filings are about as good a source of such evidence as one could hope for.

More broadly, I think the problems we have with the patent system can be seen as being rooted in the fact that there isn't anyone fully empowered to represent the public interest in this negotiation. The PTO is supposed to do this, in theory, but the examiners are overworked and have the wrong incentive structure.

And, there's a key problem: in a dispute over the obviousness of a claimed invention, the burden of proof is on the examiner to show that it's obvious -- which can be very difficult, particularly when the applicant can reply that anything seems obvious in hindsight. I propose that instead, the burden of proof should be on the applicant to provide objective evidence of nonobviousness.

Such evidence could take various forms: showing that others have tried and failed to solve the same problem; publication in a peer-reviewed journal or conference proceedings; showing that the need for a solution has been long and keenly felt.

> And it's only a good trade if the information in the patent is actually valuable.

Slightly different subject, but I think this the best argument for why software patents, at least in their current form, are bad.

With a useful patent system, the patent library should be a treasure trove of information. People with difficult problems to solve should be wandering through the archives to see what's out there. If the patent is still in force, the license fees should be well worth it, since it solves a hard problem!

Have you even heard of a programmer doing such a thing? I certainly haven't. In fact, the general advice I hear is the exact opposite: actively avoid looking at patents, because you're liable for more damages if you infringe willfully than if you do so by accident.

Oh, I thought he meant that the invention itself was obvious, i.e. unpatentable because anyone knowledgeable in the field in question would come up with that solution when presented with that problem. In theory, "obvious" inventions aren't patentable, although in practice the bar is set pretty low.