Software Obviousness: The Disconnect between Engineers and the Patent System

Abstract

Software engineers overwhelmingly dislike software patents and consider nearly all of them obvious. Are they correct, or do they simply not understand the law? To answer this, we look at obviousness law in an industry whose practitioners generally accept and value patents: pharmaceuticals, and ask if there are legal principles there which should be applied to software more frequently. The author, a software engineer, argues that "obvious to try," a principle well understood in the context of pharmaceutical patents, is ripe for appropriation in the software patent context. Several cases are explored to illustrate how the concept of "obvious to try" could be applied to fit the reality of how computer science actually works.