My suggestion for an alternative version of "non-obviousness" is:
an historically novel association between previously disparate concepts.
Under this approach, in addition to novelty (ie. has this product/process been done before), etc., in order to fulfil the requirement for non-obviousness the patentee would be required to:
Step 1 -- identify all the relevant concepts constituting their purported invention;
Step 2 -- identify all the linkages/associations between the concepts;
Step 3 -- of those linkages/associations, specifically identify the one or more links which the patentee claims to be historically novel, and that would define the perimeter of possible ownership by the patentee (IFF it is indeed historically novel, etc.).
This approach presupposes the qualified practitioners had full knowledge of the prior art base. In reality, the possible outcomes any one or more practitioners could generate with respect to the prior art base are proportional to their knowledge of the prior art base. Therefore, both the quantity and quality of the prior investigation are important considerations.
As has been stated in cases in considering such an approach:
... the court can quickly find itself caught up in an investigation of what was or was not obvious to certain identified individuals at certain dates during the history of the development of the product or process involved. This gives rise to complications because the state of knowledge of these individuals, though skilled, may not correspond to the statutory definition of the [prior art base].
The problems with requiring the expenditure of resources to get a patent are: (a) define the level of expenditure which merit a patent? Would it be the same for all patent classes? Would it change over time? If so, how would you do this? (b) by setting a level you encourage inefficiency or at least purported inefficiency. That is, instead of thinking up something in the shower, the inventor goes to great lengths to 'prove' all the effort they went to to develop the invention. Sure, audits mitigate this but will not eliminate this shortcoming.
Further, some of the great inventions which revolutionise industry follow years of effort (by X) to no avail, then someone (Y) somehow just happens to look at it from a different perspective and in a flash the invention is made. Would you then deny Y the right to a patent? Hardly seems fair that we would encourage the inefficient dumb thinking X's of the world and not encourage the insightful, questioning Y's.
Slashdot Mirror
As has been stated in cases in considering such an approach:
The problems with requiring the expenditure of resources to get a patent are:
(a) define the level of expenditure which merit a patent? Would it be the same for all patent classes? Would it change over time? If so, how would you do this?
(b) by setting a level you encourage inefficiency or at least purported inefficiency. That is, instead of thinking up something in the shower, the inventor goes to great lengths to 'prove' all the effort they went to to develop the invention. Sure, audits mitigate this but will not eliminate this shortcoming.
Further, some of the great inventions which revolutionise industry follow years of effort (by X) to no avail, then someone (Y) somehow just happens to look at it from a different perspective and in a flash the invention is made. Would you then deny Y the right to a patent? Hardly seems fair that we would encourage the inefficient dumb thinking X's of the world and not encourage the insightful, questioning Y's.