I've been trying to think up a practical way to use that very test as the barometer for patentability. Announce the problem that has been solved, and let the public submit solutions. If any of them are close to what is in the prospective patent, the patent shouldn't be granted.
It's tough though, because often the inventive thing is framing the problem correctly, or even identifying that there is a problem to be solved here. By assuming that, you're in danger of a hindsight bias.
Patents were never intended to grant monopolies over a given problem. If you're solving a problem that no one else has solved before, people will try to solve it once they use your product. I don't think granting monopolies over a problem space helps society. Quite the contrary.
> Patents were never intended to grant monopolies over a given problem.
Well I didn't say that they were... but I'm not sure I agree with your statement anyway. Do you have any evidence that that isn't what they were intended for?
I don't have any evidence. It just doesn't make sense to grant monopolies on a problem. It would harm innovation rather than help it. We'd have one medicine to treat each ailment, for instance.
Like the article that was recently posted about smart headlights letting drivers see through rain. Once you read the headline, you instantly know "camera(s), projectors, and motion-tracking algorithms" without having to click through to the article. Maybe the specific combination of motion tracking algorithms could be patentable for a short time, but not in such a way that an independent implementation necessarily infringes the patent.
