How would one present evidence of non-obviousness? It seems very difficult once a solution is presented. Its a bit easier to prove that something was obvious at the time of invention. One sure sign is if there are many cases of independent invention.

I think therefore that one simple way to ameliorate some of the abuse in patents is to give defendants an independent invention defense. What I mean is, if you can prove that you had no access to the patent holders patent or idea, and that you came up with it independently, then, that should be taken as a factor showing that the solution may have been obvious. If additional companies similarly show that they also independently came up with the same solution, then that is additional strong evidence of obviousness that should make the finding of obviousness more likely.

Right now, independent invention is not a defense. And multiple independent invention isn't even considered evidence of obviousness.

As embarrassing as slide to unlock is for the US patent system, its actually not the more egregious case of obvious things being patented. If you look at what is being filed in social networking patents, database patents, and cloud computing, any person here on Hacker News would be shocked.

The problem is, the USPTO examiners are NOT shocked. Have you ever talked to one of them? The quality of their technical knowledge is EXTREMELY poor. EXTREMELY. The USPTO seems to have recruited third-rate PHDs and other "technical" folk from developing nations, and put them into examiner positions based on their degrees alone. I have seen many many office actions from USPTO examiners where it was obvious that the examiner understood absolutely nothing of the patent he was reading, so he just did a Google search on the key words in the abstract and pasted the paragraphs he found into a response. The office actions are not even coherent, much less effective.

Don't take my word for it. Do a search for a patent that has some technical phrase you are familiar with ... say Markov Chains. Then take the patent you find and go to the USPTO Public PAIR database. Pull up that patent application. Go into the record of documents for that patent and read the first office action that was sent by the USPTO for that patent ... I will bet you 10 to 1, the office action will be utter gibberish that makes no sense. I'm willing to give you those odds, because out of the hundreds of office actions I have seen, perhaps less than ten have made any sense ... where the examiner had any clue at all.

Programmers don't realize this basic problem.

Every patent lawyer understands it. And they are embarrassed by it. They are embarrassed because they are making tens of thousands of dollars writing oppositions to documents written by what are essentially technically retarded individuals. This is not a disputed fact. Go put some beers into a patent prosecution attorney, and let him start talking to you about office actions he has received from the USPTO.

These office actions usually don't get seen by the public. They only get surfaced in big litigations ... and when they are surfaced, all involved are deeply embarrassed. Why? Because both plaintiff's and defendant's attorneys don't want to come out and say that they are making a living in a system that is fundamentally broken at its very core.

What does it mean if the USPTO patent examiners don't actually do any examination worth a damn at all? Has the American public been made aware of this blatantly obvious and true fact? No. They continue to think that the USPTO is actually serving a useful examination function. That is a complete and utter lie. And its a lie out in the open. Just open up the prosecution history for any technical patent as I asked earlier. ANY TECHNICAL PATENT.