The problem with patent law (and the patent application and prosecution processes) is that the outcome of a patent application is binary: either the patent is awarded or not.
Clearly, most patent applications will have some level of innovation when compared to prior art. While the innovation of some patents may be truly revolutionary, for most patents the innovation is typically incremental. The fact that there is “some innovation” means that applicants (and their lawyers) can eventually get their patents to issue. But, once issued, the protection afforded to a patent is the same whether the underlying innovation is revolutionary or incremental.
Incremental innovation should be encouraged, but the protection extended to an incremental invention must be limited. If I come up with an idea six months before it would have been obvious to those “skilled in the art”, do I deserve the same protection afforded to an ideea that is twenty years ahead of its time? I don’t think so. And, it is precisely that mismatch that makes people (especially those involved in IT and software systems) dismiss the whole patent process.
So, here is an idea whose time has come: Why not allow the patent office to issue patents on a scale that reflects the level of innovation — and accordingly provides the patent holders with protection that is commensurate with their level of innovation? A patent embodying an idea that is 6 months ahead of the curve would get (say) five years of protection, whereas a patent embodying an idea that is 6 years ahead of the curve should get fifty years of protection.
The adoption of such an approach has the added advantage of making inventors (and inventor-wannabees) think twice before rushing to file a patent…