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.