To address your first point about patents, I really think that would be a bad idea. Making the patent code more complicated just rewards the people who spend lots of effort on mastering its arcade rules and not making something people want. In this case, a requirement that your product had to be in production would be an easy thing to get around if you had money and know-how (just make a small run of the product that meets the bare minimum requirements), but could really mess up companies that don't have the money to do that, or haven't lawyered up and don't realize they have to.