In any case, as I understand, once the patent has been issued, the courts generally defer to the PTO on the obviousness question. I think plaintiffs in infringement cases should have to demonstrate nonobviousness again in order to proceed. While it would be better for the PTO to be more of a stickler on this point, the fact is that we don't give them the kind of resources they would need to do as thorough a job as they should do on every patent.

For example, the PTO could maintain a team of engineers specifically for obviousness testing. When an application comes in, they would pose the problem the patent claims to solve to a selected panel of maybe 4 or 5 of them, who would have a couple of days to sketch some possible solutions. If they come up with the same idea as in the patent, that should pretty much kill it.

But as I say, we don't spend enough money on the PTO for them to do that. Since we don't, having the courts re-evaluate each patent on this point seems the only solution.