If the examiners can't enforce enablement, doesn't that mean it isn't a true requirement? And that in fact patents wind up being drafted not for the layperson?
Enablement is a joke in software patents. I actually did research on this and "written description", and (from memory) some judges have said that you need "structure" in your application, and having a box on your diagram labelled "access control" can be that structure. A person of ordinary skill in the art could construct it from those words. There's no need to provide any further details on the access control.
Before someone points this out: obviously if "access control" is not part of the claimed invention, then you don't need to specify it beyond a box. But then you probably wouldn't have put it in the diagram in the first place.
There's an empirical test that the PTO could do: take some software patents and give them to a large sample of people skilled in the art (which, if I remember correctly, is often two years of relevant experience plus a BS degree in computer science). "Relevant experience" would mean "in the field of the patent," e.g. if it's automobile battery management software, experience in missile guidance doesn't count.
See how many are able to make and practice the invention with a "reasonable amount of experimentation."
Yes, my personal opinion is that enablement is not a true requirement in the US. I think a lot of problems with the current patent system would be helped by making the law stricter about enablement and also giving the USPTO more resources (money, in particular) so that examiners can enforce the enablement requirement.
Also, to be clear: Patents legally aren't for laypeople. They're for people working in the field of the invention.
Most patents omit crucial details to actually reproduce the invention. This is especially important in case of pharmaceutical and chemical patents. Full hardware and conditions are not documented nearly as well as a typical grad paper, which already tend to have holes.
"Software" patents, often similarly omit "irrelevant" modules.
Chocking it to "a specialist can make the module from scratch" is insufficient and should never be allowed.
In addition, a lot of the patents, due to lacking the details, are obvious as written to a specialist, just the details are not.
