The problem I have with software patents is that they basically do the same thing. They request monopoly power over the invention while not disclosing how someone in the field could implement it, which would require source code, etc.
Since software patents don't disclose enough for another programmer to implement the invention, I don't see how they are benefiting society. They don't share the knowledge but still get the monopoly benefit.
I'd also like to note that the quid-pro-quo model of patents suggests that, in fact, it shouldn't be enough for the solution to be non-obvious: It should have to be non-obvious even once you have been told such a thing exists. Because if the mere knowledge of the existence of something would be sufficient to render how to do it obvious, the inventor cannot hope to keep its workings secret once it is released, and so we are trading for something that would be worthless anyway.
there's a logical flaw in your argument, though, because where you say "we are trading for something that would be worthless anyway" it assumes the choice is between "trade secret" and "disclosed." But there is really also a choice between "trade secret, people know it exists and what it does but must guess at how" and "trade secret, no one knows it exists or what it does".
In other words, for some kinds of trade secrets, perhaps inventors might not even let you know of the existence of their invention, since without legal protection this knowledge would render the competitive advantage it confers worthless - even though before disclosure, skilled practitioners did not think to use it, as it is quite novel and those skilled in the art have not come up with it despite its obvious utility once disclosed.
Thus inventors might secretly enjoy its benefits or fruits. (This is easy enough to imagine; there could be a closely guarded manufacturing process in use right now that the public and other manufactuers do not even knows exists, and is not in the final product. The manufacturer simply makes an end product more cheaply, say. But telling us what the process is would give it away.)
Imagine, for example, that Google uses some kind of trade secret as part of ranking web pages. We don't even know what the process is, let alone how it is done. Naming the process would render it public and unprotected. So, it remains the only search engine that uses it, secretly.
Lack of prior art should be used to establish novelty, not obviousness. The test for obviousness should be based on the proposed solution, not the problem.
There is a second part of the patent quid pro quo deal that is often glossed over and that is "... without undue experimentation". For many ideas, the idea is enough to allow someone to reproduce it, but for a large subset of those ideas, a person skilled in the art would still have to go through undue experimentation if there is no source code available.
Source code is often the only way for someone to recreate an idea disclosed via software patent without undue experimentation.
I've always wondered - why isn't source code disclosed in a software patent? In most other mechanical inventions or even pharmaceutical ones, the type of disclosure required does include a fair bit of detail - perhaps blueprints of some sort and certainly lots of diagrams and explanations. Wouldn't the software equivalent of that be the source code, rather than, say, screenshots?
Worth mentioning the patent was set to expire in Canada in ~18 months anyways. The US patent was set to expire in early 2012 but coverage appears to have been extended to 2019. The bigger resulting effect here might be from the establishment of a precedent of the wording that the court is expecting in patent filings. In the full ruling below, the main missing disclosure I can see is:
"Only sildenafil, the subject of Claim 7 and the active compound in Viagra, had been shown to be effective in treating ED at the time of the patent application. Although the patent includes the statement that “one of the especially preferred compounds induces penile erection in impotent males”, the patent application does not disclose that the compound that works is sildenafil, that it is found in Claim 7, or that the remaining compounds had not been found to be effective in treating ED."
Ouch, that's nasty. A patent claim that lists a bunch of compounds, of which only one works? No wonder the court struck it down; the filing itself is actively obstructing knowledge.
The Supreme Court of Canada is extremely well respected by a majority of Canadians and this ruling is a very good example of the reason why it is so well respected.
Fellow Canadian here - indeed. You'd be hard pressed to guess which way a particular Justice leans politically, unlike our cousins to the south. Heck, our Chief Justice excused herself from Conrad Black's potential hearing because she didn't want to be in a conflict of interest. That's integrity right there.
We just lean differently up here - federalist instead of sovereigntist. Take a look at this political cartoon that was in Le Devoir during the reference re secession of Quebec - http://jpzeni.wordpress.com/?attachment_id=64
Hahahaha...this is why I love the Canadian legal system! Courts here go back to the founding principle behind a law and not just conclusion resulting from rules of the game.
I do wonder if this will have an effect on investment and research into medicines. If the cost of creating drugs (used to work in clinical trials) becomes greater than the return, I can see some problems.
Patent laws generally could certainly be improved.
But by far the biggest problem is software patents. There's no need to make all patents (software, hardware, pharma, etc.) the same because the industries and the cost structures / innovation cycles are very different.
Since software patents don't disclose enough for another programmer to implement the invention, I don't see how they are benefiting society. They don't share the knowledge but still get the monopoly benefit.