Patents bring the following trade-off: inventor monopoly defendence vs. block of progress\future use cases utilizing patent. So patents both are enforcing and slowing innovation.
This could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.
The 2-3 year wait on getting a patent issued can be an eternity in software while a competitor has ripped you off soon after you released. Anyone who has been in that case would gladly trade a term of half the length for a granting that took place twice as quickly.
I think software needs a new kind of protection, that issues faster, makes it easier for other people to search, and expires sooner.
I just recently wrote a paper on software patents. Although we could suggest a shorter patent term, there are many practicalities in the process of granting patents that makes it an inferior solution to abolish software patents altogether.
Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment.
God and the compilers bless the brave man to embrace such noble cause.
"Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling."
I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.
Any big company can pour any large amount of money to "innovate", which will probably help them bring the product to market sooner, but that isn't justification for a temporary monopoly grant.
"Cheap to copy" sounds like something to be embraced.
The issue is that in economic terms, the amount of money required to innovate is absolutely relevant. There is no need for any incentive if the company can recoup that figure before competitors copy the invention.
We'd probably have better and cheaper drugs without the patent system. If more companies can make and sell the same drug, more companies can also fund research.
no. the upfront costs for pharma development are prohibitive. the chances of a new molecule making it through clinical trials is really small.
the economic crisis has put a lot of emphasis on efficacy for inclusion on various formulary schemes, be it private ones like in the US or state-run ones like in EU. now you need an approved product that is also not only marginally better than existing stuff. just takes away some nasty side effect? no reimbursement for you, pharma-economics trumps this.
so, you have run ups of 10 years to line up a single new drug. scientists, the whole approval chain, supply chain, etc. then you get approval and your drug is good enough to be reimbursed, hooray. as the FDA process is public, your generic competitors have been watching - now that you have proven everything, they can flood the market and can undercut you significantly as they do not need to recuperate the initial investment of 10 years.
you have this happen once or twice and then say fuck it. let's play the lottery, better ROI.
the whole patent system was invented for a reason. it makes perfect sense for pharma. abolish it there and drug development will only happen through government programs.
We have problem A, which is alleviated by crutch B. Therefore, do not remove the crutch.
No. If there is a problem with the FDA approval system, let's fix that. Unless it's even more hopeless than reforming (or abolishing) the patent system?
> the whole patent system was invented for a reason.
Yes, but it doesn't matter in the slightest. What matters is what the patent system actually does, and the consequences of removing it. Speaking of which:
> abolish it there and drug development will only happen through government programs.
Probably. However, it may not be so bad if we fix problem A, namely the FDA. Also see "Against Intellectual Monopoly"[1], which talks about the pharmaceutical industry in its 9th chapter.
I don't get your point. The FDA approval system is not the problem. It is scientific and one of the toughest approval processes worldwide. It has improved dramatically in the last 15 years.
Speeding up the process would be dangerous as it is about human health and side effects take time to surface. You want to be really sure before you approve a new molecule. Contergan showed what can go wrong.
And the FDA process being public is a good thing too. Transparency is important. Just like openly documented patent claims.
Okay, if we can't help it, let's have an expensive approval procedure. I'm willing to accept this cost is a necessary evil. That doesn't mean however that patents are the only solution. There are other forms of government interventions.
We could make a Manhattan project dedicated at lengthening healthy life expectancy, for instance (who wouldn't like to live a few more healthy decades?). Or we could grant more money to private parties making promising claims. Or we could grant prizes for achieving particular goals (like finding a cure or a vaccine for such and such disease).
> Transparency is important. Just like openly documented patent claims.
The document is a good thing. The monopoly that goes with it is another matter. Promising a monopoly over inventions speed inventors up, but granting one such monopoly slows everyone else down. Plus the costs induced by the patent approval system, and litigations. I doubt this is a good trade-off.
If we do not want babies born with flippers in this country, then we need expensive approval tests. (Those who don't get the reference should look up thalidomide - which the FDA kept out of the USA.) Those currently cost an average of something like $150 million per drug. The temporary monopoly provided by patents lets us get those costs recouped.
That said I don't think that pharmaceuticals are the poster child for patents. And in a comment on the blog I offered the example of using hookworm to treat Crohn's disease. The FDA has ruled that it would require their approval. But no patent is possible, and therefore nobody is trying to get it approved. And the result is that the most promising known treatment for hundreds of thousands of sufferers of Crohn's disease is, and will remain, illegal to even consider offering in the USA.
I thought the FDA approval system where too big, inefficient, and didn't always addresses the right problems. I also thought solving this would significantly reduce costs, and therefore work towards removing the need for government intervention like patents.
The other comments around here show that I was probably mistaken. We probably need the FDA as it is now (or close to that), and we probably need something else to compensate for FDA's unavoidable flaws, and the sheer difficulty of doing research.
> We have problem A, which is alleviated by crutch B.
It's not a crutch. It's "we have textbook market failure A, which is alleviated by textbook government intervention B; we can remove the intervention, but we have to substitute one of the other textbook interventions suitable for addressing market failures."
> If there is a problem with the FDA approval system, let's fix that.
First, the FDA approval system is a major but not the biggest cost in getting a new drug to market. Making it dramatically cheaper wouldn't eliminate the underlying problem.
Second, the FDA process is thorough and therefore expensive for good reason. The drug market is problematic because its exceedingly difficult to trace a condition to a particular drug, and because conditions sometimes show up years after treatment with a particular drug.
And the cost of letting a bad drug through is astronomical. A popular drug like Vioxx might be used by 50 million people worldwide. David Graham, and FDA scientist, estimated that Vioxx caused 90-140k preventable heart attacks, and estimated 25-55k preventable deaths from those heart attacks. What's the cost of this damage? How much would you have to be paid to have a heart attack? Remember the target demographic of Vioxx, middle aged men with decent jobs that provide health insurance to be able to afford an expensive medication, is one of the most expensive demographics in terms of lost income from premature death. Between premature deaths and heart attacks, the actual cost of the Vioxx mistake could be $50-$100 billion in the US. Merck had spectacular lawyers and ended up settling for a fraction of that, but that's the nature of class-action settlements--the tortfeasor only ever pays pennies on each dollar of damage their products cause. The public bears the rest of those costs.
> It's not a crutch. It's "we have textbook market failure A, which is alleviated by textbook government intervention B; we can remove the intervention, but we have to substitute one of the other textbook interventions suitable for addressing market failures."
Oops. Of course. Thinking of patents as a form of government intervention enlarge the solution space. I was seeing a dichotomy (or spectrum) patent/no-patents, but I did not think about exploring other dimensions.
> First, the FDA approval system is a major but not the biggest cost in getting a new drug to market.
What are the biggest costs? Knowing that could determine the best course of action.
Think of this in more precise economic terms. Say it takes $X to develop an invention that produces $Y of social benefit. If the invention is cheaply and easily copyable, people won't invest the $X unless they can recoup at least $X + some profit out of the $Y of social benefit. It's a classic free-rider problem. It's the economic reason why we have government-funded defense instead of private defense.
You're assuming that there exists some finite $X to develop some invention, as if you simply pour enough money into a problem, a solution will be found.
This is faulty logic. There is no direct correlation between money spent to develop, and outcome of desired invention/solution. Name one disease that needs to be treated/cured, and how much more money needs to be spent on R&D to find the solution. Nobody can do that. Ergo, your math does not apply.
When you let free-riding happen, (e.g. ban patents and allow copying of inventions, not to be confused with copying of brand), you let grass-roots innovation happen. More people get to understand the problem domain, more cheaply than any monopoly can manage.
This is borne out of a massive incorrect assessment of the pharmaceutical industry. It takes a tremendous amount of money to bring a drug to market, billions. More if you count all of the drugs that are tried but fail to meet expectations (of efficacy or safety). If you don't allow drug makers a window of time in which to make back their R&D costs through high profit margins then you simply will not see as many new drugs developed.
That's a rather one sided view of the problem. Just because patents presently allow the pharmaceutical industry to fund R&D costs (estimates of which might be inflated[1]) does not mean they are the only way. If the cost of patents outweigh this one benefit, we should get rid of them.
First, not all research is done by the pharmaceutical industry. In the US, they account for about 36% of research spending[2], behind the government (38%, federal plus state plus local). Note that total funding by the industry (not limited to pharma but including biotech and medical devices) represented 58% in 2007 but the role of patents in those industries is a different debate. The remaining 4% are from foundations and charities.
Next, considering that pharmaceutical companies spend far more on marketing than research and development (typically 25% vs 15% of revenues respectively)[3] and considering that a large part of their revenues comes from public healthcare anyway, one can wonder how hard it would be to replace their R&D spendings with public funds, and get the money back thanks to cheaper drugs,since generics are typically 20% of the brand price.
(BTW I wonder what part of these 15% of revenues spent on R&D is for important research and what part is spent on looking for the next Botox)
Also patents could be replaced with public funding in ways that minimize the impact on the industry, for example by granting prizes for the discovery of important drugs.
I don't think InclinedPlane was arguing that there aren't other ways to do drug research. Patents are just one solution to the free rider problem, and pretty much every free rider problem lends itself to the same small set of solutions: propertization, regulation, or subsidization. We address the free rider problem in drug development by giving temporary property rights in drug formulas, but we could just as easily regulate the industry and guarantee a rate of return or publicly fund development.
Sure, there might be many ways to fix the problem, but just getting rid of pharmaceutical patents and doing nothing else is unlikely to help.
Also, be careful about misusing the statistic of "drug companies spending more on marketing". A huge part of "marketing" is giving away free samples, which are often used by doctors to help reduce the cost of drugs for low income patients.
Ah indeed I read more in your comment than you actually wrote.
Regarding free samples, it's a good point that I overlooked. According to reference [3] above, free samples account for 28% of marketing expenditures. The remaining 72% still represent 18% of revenues spent on pure marketing. So even if all free samples were used by doctors to help the poorer patients, there is arguably more money spent on marketing than R&D.
If you think "This is borne out of a massive incorrect assessment of the pharmaceutical industry. It takes a tremendous amount of money to bring a drug to market, billions." you might also think Hollywood accounting has anything to do with the actual cost of making movies.
Saying "we should have patents for X and Y industries" seems... a bit static. The ideal thing would be to have a system for observing and keeping track of things. For the sake of argument, say developing a drug gets as easy as putting up a web site. At that point, patent protection no longer makes sense. Or perhaps some new industry springs up - how much patent protection should be given? There should be some kind of reasonably objective way of deciding.
Reform could also take the form of tightening the 'novelty' and 'nonobvious' requirements. For example:
• independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well
• allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'
I think proof of independent invention should at the very least establish a presumption that the invention is not novel. The probability of a truly novel invention being independently invented within some time frame is small enough that we can assume for the purposes of a civil case that it negates novelty.
I think independent invention speaks more to obviousness. Let's say facing a new problem in a new market, five different teams all come up with something unprecedented in the same year or two.
Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order.
There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
Keep in mind, though, that the requirement is non-obviousness to one of ordinary skill in the art. Even if more than one team comes up with the same thing in the same time frame, it might still be non-obvious if those teams were geniuses and dozens of ordinary teams had also tried to solve the problem and failed.
It's possible, but I think in a civil case where the burden of proof is "more (or less) likely than not" I think concurrent invention should create a strong presumption of obviousness.
In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant.
For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches".
The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.)
Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard.
(And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)
> I think proof of independent invention should at the very least establish a presumption that the invention is not novel.
Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1
True innovation protects itself in most cases, depending upon the ease with which a third party can copy it. In general, the threshold for what constitutes innovation in software is much to low. The certain of Apple's patents in its case against Samsung provide relatively good examples of this. The "bounce-back" feature, while a nice addition to iOS, is not an innovation that warrants patent protection. Nor is the "tap to zoom" patent.
So there are two kinds of patents we're talking about here. One is a utility patent, the other is a design patent. Most of the patents in Apple's suit against Samsung are design patents. See: http://en.wikipedia.org/wiki/Design_patent#Comparison_to_uti...
The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product.
They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.
That's what I get for quick googling instead of reading the court docs. It doesn't really help that most of the sites reporting the suit use "design patent" and "utility patent" interchangeably. :(
Oh, I can't wait to see how lobbyists and lawyers allow to dismantle the patent system ;-) I'd like to give some constructive critic, however. So, I propose the opposite approach. Let's make the whole system even more complex and expensive for patent holders.
Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money.
Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.
45 comments
[ 2.5 ms ] story [ 35.4 ms ] threadThis could be fixed with with the following solution that will maximize public good. There're no good reason for 20 years patent periods in some industries with short cycle of product development, like software, mobile, cloud etc. Cleraly, after first 3-5 years patents start to be either completely useless or slowing down both patent holder's and external innovations. If company is defended by patent, there's no urgency for innovation. This is unfair advantage.
I think software needs a new kind of protection, that issues faster, makes it easier for other people to search, and expires sooner.
Even without patents, we still have copyrights, "dress trade" and other nuances of the legal system, before we really have a worry-free, innovative environment.
God and the compilers bless the brave man to embrace such noble cause.
"Although ending the patent system is a clean solution to all the problems induced by modern patenting, it clearly is not desirable given the importance of industries like the pharmaceutical industry. Since this industry spends on average hundreds of millions of dollars bringing to market a successful drug, pharmaceutical companies would not invest such large sums without the protection of patents (or without other benefits). Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling."
I generally agree with this, but I think it's a little analytically lazy. I think the Supreme Court was right to recognize that we should not just categorically ban certain kinds of patents. Instead, we should articulate the distinctions between the two industries and reformulate the patent eligibility criterion in terms of this distinction.
"Cheap to copy" sounds like something to be embraced.
Patents should be categorically banned.
the economic crisis has put a lot of emphasis on efficacy for inclusion on various formulary schemes, be it private ones like in the US or state-run ones like in EU. now you need an approved product that is also not only marginally better than existing stuff. just takes away some nasty side effect? no reimbursement for you, pharma-economics trumps this.
so, you have run ups of 10 years to line up a single new drug. scientists, the whole approval chain, supply chain, etc. then you get approval and your drug is good enough to be reimbursed, hooray. as the FDA process is public, your generic competitors have been watching - now that you have proven everything, they can flood the market and can undercut you significantly as they do not need to recuperate the initial investment of 10 years.
you have this happen once or twice and then say fuck it. let's play the lottery, better ROI.
the whole patent system was invented for a reason. it makes perfect sense for pharma. abolish it there and drug development will only happen through government programs.
No. If there is a problem with the FDA approval system, let's fix that. Unless it's even more hopeless than reforming (or abolishing) the patent system?
> the whole patent system was invented for a reason.
Yes, but it doesn't matter in the slightest. What matters is what the patent system actually does, and the consequences of removing it. Speaking of which:
> abolish it there and drug development will only happen through government programs.
Probably. However, it may not be so bad if we fix problem A, namely the FDA. Also see "Against Intellectual Monopoly"[1], which talks about the pharmaceutical industry in its 9th chapter.
[1] http://www.dklevine.com/general/intellectual/againstfinal.ht...
Speeding up the process would be dangerous as it is about human health and side effects take time to surface. You want to be really sure before you approve a new molecule. Contergan showed what can go wrong.
And the FDA process being public is a good thing too. Transparency is important. Just like openly documented patent claims.
We could make a Manhattan project dedicated at lengthening healthy life expectancy, for instance (who wouldn't like to live a few more healthy decades?). Or we could grant more money to private parties making promising claims. Or we could grant prizes for achieving particular goals (like finding a cure or a vaccine for such and such disease).
> Transparency is important. Just like openly documented patent claims.
The document is a good thing. The monopoly that goes with it is another matter. Promising a monopoly over inventions speed inventors up, but granting one such monopoly slows everyone else down. Plus the costs induced by the patent approval system, and litigations. I doubt this is a good trade-off.
If we do not want babies born with flippers in this country, then we need expensive approval tests. (Those who don't get the reference should look up thalidomide - which the FDA kept out of the USA.) Those currently cost an average of something like $150 million per drug. The temporary monopoly provided by patents lets us get those costs recouped.
That said I don't think that pharmaceuticals are the poster child for patents. And in a comment on the blog I offered the example of using hookworm to treat Crohn's disease. The FDA has ruled that it would require their approval. But no patent is possible, and therefore nobody is trying to get it approved. And the result is that the most promising known treatment for hundreds of thousands of sufferers of Crohn's disease is, and will remain, illegal to even consider offering in the USA.
The other comments around here show that I was probably mistaken. We probably need the FDA as it is now (or close to that), and we probably need something else to compensate for FDA's unavoidable flaws, and the sheer difficulty of doing research.
It just doesn't need to be patents.
It's not a crutch. It's "we have textbook market failure A, which is alleviated by textbook government intervention B; we can remove the intervention, but we have to substitute one of the other textbook interventions suitable for addressing market failures."
> If there is a problem with the FDA approval system, let's fix that.
First, the FDA approval system is a major but not the biggest cost in getting a new drug to market. Making it dramatically cheaper wouldn't eliminate the underlying problem.
Second, the FDA process is thorough and therefore expensive for good reason. The drug market is problematic because its exceedingly difficult to trace a condition to a particular drug, and because conditions sometimes show up years after treatment with a particular drug.
And the cost of letting a bad drug through is astronomical. A popular drug like Vioxx might be used by 50 million people worldwide. David Graham, and FDA scientist, estimated that Vioxx caused 90-140k preventable heart attacks, and estimated 25-55k preventable deaths from those heart attacks. What's the cost of this damage? How much would you have to be paid to have a heart attack? Remember the target demographic of Vioxx, middle aged men with decent jobs that provide health insurance to be able to afford an expensive medication, is one of the most expensive demographics in terms of lost income from premature death. Between premature deaths and heart attacks, the actual cost of the Vioxx mistake could be $50-$100 billion in the US. Merck had spectacular lawyers and ended up settling for a fraction of that, but that's the nature of class-action settlements--the tortfeasor only ever pays pennies on each dollar of damage their products cause. The public bears the rest of those costs.
Oops. Of course. Thinking of patents as a form of government intervention enlarge the solution space. I was seeing a dichotomy (or spectrum) patent/no-patents, but I did not think about exploring other dimensions.
> First, the FDA approval system is a major but not the biggest cost in getting a new drug to market.
What are the biggest costs? Knowing that could determine the best course of action.
This is faulty logic. There is no direct correlation between money spent to develop, and outcome of desired invention/solution. Name one disease that needs to be treated/cured, and how much more money needs to be spent on R&D to find the solution. Nobody can do that. Ergo, your math does not apply.
When you let free-riding happen, (e.g. ban patents and allow copying of inventions, not to be confused with copying of brand), you let grass-roots innovation happen. More people get to understand the problem domain, more cheaply than any monopoly can manage.
First, not all research is done by the pharmaceutical industry. In the US, they account for about 36% of research spending[2], behind the government (38%, federal plus state plus local). Note that total funding by the industry (not limited to pharma but including biotech and medical devices) represented 58% in 2007 but the role of patents in those industries is a different debate. The remaining 4% are from foundations and charities.
Next, considering that pharmaceutical companies spend far more on marketing than research and development (typically 25% vs 15% of revenues respectively)[3] and considering that a large part of their revenues comes from public healthcare anyway, one can wonder how hard it would be to replace their R&D spendings with public funds, and get the money back thanks to cheaper drugs,since generics are typically 20% of the brand price.
(BTW I wonder what part of these 15% of revenues spent on R&D is for important research and what part is spent on looking for the next Botox)
Also patents could be replaced with public funding in ways that minimize the impact on the industry, for example by granting prizes for the discovery of important drugs.
[1] http://news.ycombinator.com/item?id=4591766
[2] http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3118092/
[3] http://www.plosmedicine.org/article/info:doi/10.1371/journal...
Also, be careful about misusing the statistic of "drug companies spending more on marketing". A huge part of "marketing" is giving away free samples, which are often used by doctors to help reduce the cost of drugs for low income patients.
Regarding free samples, it's a good point that I overlooked. According to reference [3] above, free samples account for 28% of marketing expenditures. The remaining 72% still represent 18% of revenues spent on pure marketing. So even if all free samples were used by doctors to help the poorer patients, there is arguably more money spent on marketing than R&D.
• independent invention should be an absolute defense for infringement, and within a certain timeframe, evidence of obviousness as well
• allow a review process (perhaps when a patent is challenged) where a jury of skilled practitioners is given the same motivating problem brief and a few days to outline possible solutions. Anything they describe would be deemed 'obvious'
Such an invention was definitely 'novel' to the first group, and was also 'novel' (as far as they knew) to the other four teams. But given the state of industry development, it was also 'obvious', because many of the teams that needed it all came up with it in short order.
There's no "progress of the science and arts" benefit from giving an extra monopolistic reward to a team that's just a little bit early (perhaps even earlier than the invention can be deployed). There might be a social benefit from rewarding inventions that can only happen with the promise of the reward.
For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches".
The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.)
Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard.
(And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)
Proof of independent invention might not establish a presumption of lack of novelty, but it can help with proof of obviousness. As one author noted a few years ago, "The Federal Circuit has stated that, '[T]he possibility of near simultaneous invention by two or more equally talented inventors working independently,… may or may not be an indication of obviousness when considered in light of all the circumstances.' [Citations omitted] In other words, the fact that another person simultaneously and independently created the same invention claimed in the patent-in-suit can serve as an indication that the invention was obvious." \1
\1 Brent Yamashita [of DLA Piper], Secondary Considerations of Obviousness in a Patent Case: The Seldom-Used "Simultaneous Invention" Factor, at http://www.patentlyo.com/patent/2008/07/secondary-consi.html (omissions in original).
I feel like this needs some substantiation before you springboard off into your argument.
The purpose of a design patent isn't to protect a novel invention that took tons of R&D to develop. Rather it straddles the gap between patent law and trademark law. The purpose is to protect the functional aesthetic of a product.
They are two very different things. A a feature protected by a design patent is supposed to have no functional utility. If e.g. research showed that the "bounce back" feature had the optimal visual feedback in clinical testing, that would actually go to invalidating the patent. The reason they are protected is precisely because they are so arbitrary. There is no need to use something like the "bounce back" feature other than to copy your competitor.
Maybe every patent application should be provided with a formal proof of how much specific innovation has cost. Declared cost would be verified and accepted by patent office. Consequently, the upper bound of possible damages awarded during a litigation should be set to that amount of money.
Such approach should repel patent trolls twofold. First, since costs of innovation in the software industry tend to revolve around 0, litigations would not be profitable. Second, more troublesome patent application process would decrease the number of issued patents and, statistically, increase their quality, making patents less accessible and useful for patent trolls.