Obviousness is obviously not the problem

The non-obviousness debate is often called the 'American desease' of patent law. As the American Court of the Federal Circuits rendered all other dogmatic means to steers the US patent policy meaningless a general clause style provision is the only thing left for policy makers to toy with. All patent reform discussions get stuck because they just focus on the non-obviousness criteria which is not applicable to fix the examination process alone. The patent crisis cannot be overcome with the non-obviousness filter alone.

Criteria such as "novelty", "non-obviousness", "technicity", "industriality" may seem intuitively reasonable, and the naive patent professional may believe that they are the very yardsticks of reason.

The naiveté of both the engineer and the patent professional consists in forgetting that "the law is an ass", as the proverb goes.

The primary function of the "non-obviousness" criterion is not to assure what an engineer or programmer thinks is a reasonable "inventive height", but to provide a filter that can be applied by patent examiners in a predictable way.

Applicability and reasonability are two entirely different requirements, which need not not match.

It is enough if the "non-obviousness" filter helps, in combination with other filters, to yield a reasonable amount of "good patents" in the end.

The Red Herring

Fishermen cast red herrings to keep the sharks away from their fish. The red herrings attract the sharks and the fishers get the more valuable fish. The shark is manipulated into a second best choice because the red herrings smell. In the same way the community of patent professionals used the public as to water down all meaningful tests which limit the granting of patents. Non-obviousness is a red herring as everyone believes to know what the filter is about.

As the FFII analysis explains the common meaning of 'obviousness' has little to do with the function of a filter with the label 'non-obviousness' in patent examination and that popular perception may well be interchangable for other terms such as 'good' or 'reasonable' or 'non-trivial'. In modern criminal laws we don't apply an 'evilness' test to determine what constitutes a criminal offence or not. In fact such testing would be considered harmful for the functioning of law and order and lead to malpractise. That is actually what happens when the examination process relies on general clause style provisions rather than a set of dogmatic filters including "technical character". "inventiveness", "industrial applicability" etc.

We are now in a situation where markets complain about a growing number of trivial patents. So the non-obviousness filter and the solution to the triviality problem look like a perfect match. But in fact, what caused patent inflation was the dismanteling of all other tests.

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