I agree -- the subjective judgment of obviousness is a huge problem, particularly in software patents.
I think the law should be changed to require objective evidence of nonobviousness.
What would that mean in a case like this? Let's suppose, as appears to be the case, that the patent has not proven to be of either commercial or intellectual value. Commercial value would be demonstrated by someone using the patented method to gain a key advantage over a competitor. Intellectual value would be demonstrated by a peer-reviewed conference or journal paper. If the BBC were to sue someone for infringement, the question would become: how important is the patented method to the defendant's business? If it's central, the BBC might have a case, but if it just slightly improves the user experience without conferring a significant competitive advantage, the suit could not move forward.
The point I'm trying to get at is this: if the idea does not prove to be of much commercial value, then there was never much incentive for someone to come up with it in the first place. Therefore the (apparent) absence of prior art provides no evidence that the idea is not obvious; and if there isn't any other such evidence either, then, under the change that I suggest, the patent could not be asserted.
Under this regime, companies would still have to worry about patents on techniques central to their business models, but could be much less concerned about incidental infringement, especially that occasioned by independent reinvention.
I think the law should be changed to require objective evidence of nonobviousness.
What would that mean in a case like this? Let's suppose, as appears to be the case, that the patent has not proven to be of either commercial or intellectual value. Commercial value would be demonstrated by someone using the patented method to gain a key advantage over a competitor. Intellectual value would be demonstrated by a peer-reviewed conference or journal paper. If the BBC were to sue someone for infringement, the question would become: how important is the patented method to the defendant's business? If it's central, the BBC might have a case, but if it just slightly improves the user experience without conferring a significant competitive advantage, the suit could not move forward.
The point I'm trying to get at is this: if the idea does not prove to be of much commercial value, then there was never much incentive for someone to come up with it in the first place. Therefore the (apparent) absence of prior art provides no evidence that the idea is not obvious; and if there isn't any other such evidence either, then, under the change that I suggest, the patent could not be asserted.
Under this regime, companies would still have to worry about patents on techniques central to their business models, but could be much less concerned about incidental infringement, especially that occasioned by independent reinvention.