Because there would be very little point. One part of the issue is patent laws themselves, the other part is that the USPTO is taken to task for both overly lengthy examinations[0] and insufficiently rigorous examinations. I don't have much experience with the USPTO themselves, but knowing people working in european patent offices:
1. they are judged pretty much solely on the number of patents examined and their responsiveness
2. patent offices are funded through maintenance fees (fees paid to renew the patents and keep them enforceable) creating a fucked up incentive to accept patents by default at the cost of the already very loose and subjective patentability criteria ("novelty" and "inventive step or non-obviousness")
3. especially given patent offices are generally underfunded and short-staffed, especially in high-flying specialists able to actually evaluate patents which are either complex or in novel fields (being a patent examiner is few people's idea of a great career, even less so once you've built experience and respectability in your field, and that's assuming the patent office could even hire and pay you), even more so compared to the high-powered business they face
4. this is compounded by states routinely "diverting" (plundering) patent offices's funding, in the US Congress diverts about 10% of the USPTO's collected fees to the general treasury
5. it is also compounded by the opening of whole new and novel patent fields ("business method" patents) which generate even faster growth than the historical patent fields and are the source of much of the bullshit patents
that's not even considering that the existing patent system simply isn't a good fit for software, more generally the whole field of business method patents seems incredibly fucked up and created specifically to be abused (good thing europe has declined to implement it)
Don't forget the Court in Eastern Texas which is a popular place for patent lawsuits. Popular because the court is friendly to patent trolls due to the revenue the court generates. [1]
> And the frequent charitable donations Samsung makes to causes in Marshall, TX, home of many of the the court's jurors.
I'd love to be a fly on the wall when an East Texas jury convenes: They all know what their verdict will be going in so I imagine they just hold out for one last free lunch and chit chat to fill up the time while they "deliberate".
> 1. they are judged pretty much solely on the number of patents examined and their responsiveness
AFAIK, it's more about responsiveness rather than number of patents. Examiners are judged on how many responses ("Office Actions") they file, whether allowing or rejecting a patent. Since a patent can keep coming back for examination after every rejection, they typically generate more responses than patents.
> 2. patent offices are funded through maintenance fees...
They get paid an examination fee every time 1) someone files a patent application and 2) someone requests for further prosecution after they get a "final" rejection.
You could also argue that this creates a perverse incentive to keep rejecting patents, especially as issuing rejections can also be easy for an examiner. They are supposed to attack every element of the claim and prove it is covered by specific sections of prior art, but I've seen responses where they literally dismiss entire claims with some vague prior art references. And there is really nothing an applicant can do about such behavior other than suck it up and pay for continued examination.
> the existing patent system simply isn't a good fit for software...
I'd say that's not true anymore. There was period where patent offices suddenly had to start accepting software-based patents and didn't know how to deal with them, resulting in poor quality patents. Things are lot tighter now.
Also, I wouldn't conflate "business method" patents with "software" patents. In fact, there is no such thing as "software" patents. There are only patents on solutions to problems that happen to be best solved with software. Business methods are just one such area of problems (which I'd agree are not amenable to patenting).
USPTO is the patent granting entity. They perform essentially two checks:
- does the patent have the right structure? (A series of progressively refined claims)
- is the patent sufficiently different from all other patents?
What they don't do is check for actual originality, because that's extremely hard in a technical field. That part of the process has to be tested in court.
Software really proceeds too fast for the patent system, has network effects that are stronger than most other technologies, and has a strong collaborative, public spirit surrounding the Internet and communications technologies.
There's also the "using a computer" loophole: while pure software may not be patentable, the process of using a computer (a mechanical device) to do something is a physical process and therefore patentable.
You have to be careful not to run afoul of Alice now. At the time many patents were granted, you didn't. So now you have to fight in court to prove that Alice applies, and therefore that the patent is invalid.
There is a lot of politics and lobbying present, but there's also intertia. It takes time to fix things. Present patent system is woefully inadequate to the world of Internet-delivered software, which is quite a recent development. It serves somewhat better in other areas.
The point of a patent is to protect your idea from being sabotaged by others so the money goes into your account hopefully and feeds your family and pays for your kids education, etc. Patents are not a block, they are a building block. If you find a patent that makes you think you are stuck and have to abandon your idea; think again. Look for ways to improve on the already patented idea and file a new patent referencing that patent and any others that apply. Patents are not a block; they are a building block. I'm not a lawyer though so my views are not to be taken as legal advice.
Google "build on a patent", here's on example of what I'm talking about:
"Your brilliant idea needn't fall by the wayside simply because you don't want to deal with the patent process."
We also need to comply with laws in order to live in a civilized society. Where in the world are there no patents today and that also has any significant positive impact on society as does America and Europe? Europe does have software patents after all.
Where in the world are there no patents today and that also has any significant positive impact on society
Due to the Berne convention, we don't get to have that comparison. Although lots of people argue that China's weak enforcement of non-Chinese IP has had rather a positive influence on their industry.
Because laws are broken and allow brazen protection racket to be declared "legal". In any normal society such racketeers should be in jail. And the reason laws are broken is basically corruption. See how patent reform constantly stalls because those who profit from this sabotage it all the time.
- Why is this happening in the first place?
- Who is this entity that grants a loose patent?
- Why isn't this entity being interrogated ?