Actually, the Supreme Court has laid out some objective tests for nonobviousness, the so-called "Graham factors" [0]: (1) commercial success; (2) long-felt but unsolved needs; (3) failure of others.

It's my opinion that in order to sue for infringement, a patentee should first have to convince a court that their invention is nonobvious, using objective tests such as these. The PTO is poorly placed to guage nonobviousness, for several reasons. First is simply the sheer amount of knowledge required to be able to judge what is obvious and what isn't. Second is the incentive structure at the PTO: examiners are rewarded for closing applications one way or another, not for rejecting arguably obvious patents. Third is the fact that some relevant evidence, namely the commercial success of the invention, simply isn't available yet at application time, and won't be until months or years later.

So the situation we have now is one where the courts tend to defer to the PTO on obviousness, but the PTO isn't set up to do a good job judging it in the first place.

For all these reasons I think it would be better if the burden of proof were on the patentee to prove nonobviousness, rather than on the PTO or defendants to prove obviousness; and if that proof had to be given in a court before an infringement suit could even be filed. This system would be very efficient given that closer scrutiny would have to be applied only to those patents whose litigation was seriously contemplated, a small fraction of all patents issued.

IPR is a step in this direction, certainly, but I'm not sure it goes far enough.

[0] https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.

Can’t work if the patented solution has become common knowledge within the profession

Drat, that's a good point. The patent office could use the test as part of the review, though.

Patents protect how a problem is solved not what is being solved.

Several valid patents can be directed at the same exact problem as long as they solve it using different techniques.

Yes, exactly. That mechanism must be non-obvious. My suggestion is that if I pose the problem meant to be solved to a random group of professionals and they quickly come up with the mechanism for solving it that an applicant is attempting to patent, then that mechanism is very likely obvious.

Take as an example the "Drinking Bird." Imagine the inventor has applied for a patent. You get some materials engineers and a physicist or something in a room, describe a device which resembles a bird and continuously sips water, and ask them to devise a way to build it in a few hours. If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.

That's part of it. Other factors that tend to show non-obviousness include being the first to have the idea to make the gadget in the first place; serving an unmet need; combining steps/parts that convention suggests should not be combined; commercial success with the invention; the combination producing surprising results; and so on.

Proving non-obviousness is well trod ground in litigation and in patent examinations. It is often the hardest criteria to get over.

Though typically obviousness can be proven by finding two or more printed publications that in combination disclose the claimed invention.

In this example, the novelty in the claim at issue is related to using a transfer criteria that is a subject identification of the image...wherein the subject identification is based on a topic, theme or individual shown in the image. This was added as the final amendment to get the patent over the prior art the examiner cited.

If one can find evidence in [edit: one or more] printed publications that this was going on before 8/8/2008, the patent can be invalidated easily. Otherwise, it will be a slog of litigation.

> If they describe a bulb full of dichloromethane with a tube leading up to a beak, then it's not patentable.

That seems pretty specific ... what would be an analogous software scenario?

Problem: customers find ordering things online to be cumbersome and time consuming. We need a for repeat customers to place orders as simply as possible.

Programmers/UX designers brainstorming session includes several ideas, including this one: What if we remembered customer addresses and credit card info and just had a single button that said "buy"?

Patent denied.