This is a brilliant insight about the larger point of truth, although Wikipedia certainly differs because there is little or no gateway controlling *who* can aggregate the information and sources. Traditional media are at least supposed to impose some form of training requirement on those aggregating the information.
Interestingly, this issue has repeatedly arisen in the law because truth is central to our entire justice system. The entire logic behind the hearsay rules is that some sources are reliable and some are not. And even then there are still a ton of exceptions to hearsay, which reflects our society's judgment that even some forms of hearsay are reliable enough to serve as a source. These rules have been evolving forever and there are still large disagreements over them. There's no clean solution to this problem and I think the experience of the law demonstrates that.
Ironically, the law does prescribe a solution. The judges do their best to filter evidentiary sources based on the rules (hearsay rules included) and then they throw questions of "truth" to twelve regular jurors and literally appeal to the authority of the many.
I think the entire point is that some people *didn't* get by. Only the lucky ones are standing around telling us how they all "got by" in the old days.
You can prove the Earth is round by looking at a lunar eclipse.
I'm not quite sure this is true. First you have to assume that it's actually the Earth's shadow. Then you have to assume that you aren't simply seeing the shadow of the flat, round Earth when the Sun is directly behind it, which is exactly what happens during a lunar eclipse.
Sovereign immunity is just a hanger-on from the days of the monarchy. The U.S. has allowed itself (i.e. the taxpayers) to be sued for a variety of reasons exactly because it is a government by the people for the people. I think we all want to be fair and just.
But if they just opened up the spigots and let every nut job sue for losing their welfare benefits or not getting as much social security as they were promised, it'd be a total waste of money and then people would call the laws idiotic for allowing people to sue for things like that. It's just a policy decision, nothing nefarious.
He's not justified, but it does paint a more complete picture of how this could have happened. Any decent manager would never have let it get to that point. Sounds like there is more than enough blame to go around and that Childs is a relatively typical, arrogant, super-competent, super-stubborn geek. He'll no doubt be remorseful after he cools off. He probably already is.
But $5 million bail? C'mon. A grown-up needs to step in here and manage the obvious emotional component of this case.
I don't think Rowling should be able to kill the Harry Potter Lexicon either, but to call her "a pretentious, puffed-up coward" and "lack[ing] a brain, a heart and courage" is going a bit overboard. It's a tough case and certainly a far cry from the purposefully abstract "comparison" with Ender's Game that Orson Scott Card uses. Maybe he makes a different decision if someone publishes an encyclopedia on the very same characters and universe that he created, but let's not act like she burned an original copy of the First Amendment or anything. Reasonable people disagree on this one.
It may be an abomination, but the doctrine of contributory liability has literally been around for more than a hundred years. (So no one can claim to be surprised.)
The Supreme Court's decision in Grokster didn't create contrib liability; just clarified how it could be proved. Congress has had many, many opportunities to write it out of existence and has never done so... write your Representative.
If WoW Glider is copying the entire game code into memory, then it's inducing infringement by the user and the maker can still be held liable. In fact, the Supreme Court recently re-emphasized (and in some respects broadened) the ability for them to do that in Grokster (2005):
One infringes contributorily by intentionally inducing or encouraging direct infringement, [citations], and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it, [citations]. Although "[t]he Copyright Act does not expressly render anyone liable for infringement committed by another," Sony Corp. v. Universal City Studios, 464 U.S., at 434, 104 S.Ct. 774, these doctrines of secondary liability emerged from common law principles and are well established in the law, [more citations]. . ..
The only defenses I can think of off the top of my head are that it isn't really "copying" (which is a loser) that maybe the user is permitted to copy (but not in that way so this is probably also a loser), and that it is "fair use." Given the alleged profit to the maker of Glider and the alleged damages to Blizzard, I'd say this case has legs.
Actually, the case (RIA v. Diamond Multimedia) was surprisingly limited and there's still a lot of debate about what it meant. Which is why we're still debating this stuff today. The Ninth Circuit simply held that MP3 players were not "digital audio recording devices" because they didn't actually make the digital copies (computers did). There wasn't much discussion of copyright issues.
However, the Court did reason that its ultimate holding was consistent with the purpose of the Audio Home Recording Act, which supposedly was to "ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." 180 F.3d at 1079 (citing S. Rep. 102-294). And then the Court said the following:
The Rio merely makes copies in order to render portable, or "space-shift," those files that already reside on a user's hard drive. . . . Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the Act.
And then the company that made the Rio went into bankruptcy and Apple made a gazillion dollars. Sometimes it's good to be second to market.
Speaking of "human intelligence" like it's a single concept is error. There are dozens if not hundreds of different human subsystems in the brain, and many of them are independent of one another. Language, vision, and auditory processes can all go haywire differently and independently of one another.
So what exactly do they mean by "human intelligence"? A system that can finally translate language decently? A computer that could actually drive a car in LA traffic? A system that can play chess without a gigantic brute force tree search? These are radically different problems.
So if they're talking about a system that can solve all of these problems and then become the synergistic whole, feeling, emoting, nuanced human brain, then this is crap. Predictions about AI have almost always been utterly, utterly wrong, even for simple processes.
I am reminded of the famous Emerson Pugh quote: "If the human mind was simple enough to understand, we'd be too simple to understand it."
Parent is correct. I *am* a lawyer and occasionally practice in this area.
This is just a decision about discovery. It says that the copyright owner is entitled to know who posted the original letter. This allows the online provider to "get out of the way" of the parties who actually have a dispute here (the alleged copyright owner and the poster). The order does NOT say that the copyright owner has valid claim for copyright infringement or that it will win that claim. In fact, as the parent points out, the court acknowledges that there may be some problems with the copyright owner's case if it goes forward.
I have serious doubts that an appellate court would ever uphold copyright infringement claims against this type of posting. But the court is more than willing to let the copyright owner at least know who it is they have a dispute with.
This is search incident to *arrest* not search incident to a lawful stop. You got arrested and are going to jail. Of course police can search your things. Gershowitz is arguing that perhaps the rule should be changed for items that have the possibility to contain a lot of information probably not related to the reason for your arrest. But it should not be much of a surprise that you are going to get searched, and pretty thoroughly, when you get arrested.
Actually, speaking as one lawyer who has had to sift through way too much e-discovery, I can tell you uncategorically that, no, we do not like earning fees sifting through your emails to co-workers about about the latest website or your boss's new haircut.
PLEASE, PLEASE, PLEASE create a regular document retention policy that mandates the deletion of all unnecessary emails and other e-documents on a regular basis. You CAN delete these files and you should. But if you wait until the lawsuit is filed, it's too late - and now we have to wade through all this crap. That's the point.
You don't need any evidence to file a lawsuit. There's a lot of reasons for that, but one of the most important ones is that often it's the defendant who has got the evidence. That's particularly true in employment discrimination cases for example. If the courts required evidence just to file, a lot of people wouldn't get their day in court and the justice system wouldn't function as intended.
I'm not going to defend SCO by any measure, but they would probably say that they didn't have any evidence because Novell was hiding it all. And that they need discovery to get the incriminating emails, meeting agendas, testimony from employees, etc. So there's a lot of discovery for you.
The whole process sounds very odd and wasteful from the outside, but there is a legit reason for the way things work. A cheaper alternative is arbitration, which we all agree to whenever we click "I accept." So maybe that will change soon, but I don't necessarily think that will be to consumers' benefit.
It's repugnant that discovery can take this long. The minimum threshhold for any litigation ought to be showing some evidence for your claims immediately after filing, not using discovery and countless motions and countermotions to keep it going for years and years.
The things is, you gotta put your money where your mouth is. My state, California, has had a court system begging for money for years just for basic services (like so court houses won't fall down in the next earthquake). And the feds aren't any better with Chief Justice Roberts continuing to beg Congress for money. Like everything, the system would be a lot faster if they had more personnel. But most of these courts are so backed up, you're lucky to get to trial in two years even if both sides push as hard as they can. And if one side really doesn't want to go... well then it's going to be a while.
There's an old saying in the legal community: you can have good, fast, or cheap. Pick any two.
Believe it or not, there is actually a 1990 statute regarding the patent question: 35 USC section 105 (Inventions in outer space).
Basically, if the invention is made, used, or sold on an outer space object under the jurisdiction or control of the U.S., it's considered to have been done within the U.S.
I don't know of any specific statue regarding invention, but there's an analogous one on inventions made abroad (35 USC 104), and it says that if you call the U.S. home and you are in another country on behalf of the U.S., then you are considered to have invented it in the U.S. as well. All very rationale stuff.
MacWorld notes if Sandisk succeeds it could have repercussions outside of the courtroom Not to nitpick or anything, but that's a really pointless statement. Court decisions always have repercussions outside of the courtroom. There wouldn't be much point to having court decisions if they didn't.
Actually, not to further nitpick or anything, but most patent suits don't end in court decisions; they end in settlements. And settlements don't typically have much effect outside of courtrooms. (Unless it's a truly massive settlement - but even the RIM/Blackberry settlement didn't really affect consumers.)
If Sandisk is very successful and an injunction issues, then that could have a much bigger impact outside the courtroom than if money simply changes hands. My point is simply that a lot of different things could happen to resolve the suit. Some results would affect us all, some would probably only affect the defendants' earnings.
In fact, if I could find a job where I would only work 4 days a week, I would probably be as if not more productive than now that I work 5 days a week. This is probably why studies show that the French, with their shorter work weeks and longer vacation schedules, are more productive than Americans on an hourly basis.
Whenever I see corruption like this I remind myself of our Founder's absolute GENIUS. The legislative branch creates independent prosecutor to investigate executive branch -> the people convict -> the judicial branch sentences -> the executive branch commutes -> the legislative branch goes nuts. It's a perfect series of checks and balances.
Meanwhile, we go about our lives content with the knowledge that our government is far too involved arguing about whether some exec in the Vice-President's office lied about an investigation in which a crime may or may not have actually been committed (no one was ever charged) to actually scheme up ways to consolidate power and threaten the Peoples' freedom. And in the end, no branch got too much say and it was the people who were required to actually convict the dude.
Thank you Adams, Jefferson, Franklin, and Hamilton. This was the true gift of our Founding Fathers; not a perfect government. They knew that men will never change.
Obviously grandmasters are dismissing millions of other options. And then they actually are considering only 3 or 4 moves.
The point is that humans can, in a half a second, do something that the fastest computers take several minutes and billions of discrete calculations to do. Now THAT's impressive. It's not so impressive that the computer can do a tree search faster and faster and faster. It's a sign of how difficult AI really is if the best we can do to emulate human thought is a super fast tree search, which is of course not how humans actually do things in the first place.
The amazing thing is that the computers only beat humans by looking at every single possibility. I think Deep Blue processed something like 200 million chess positions a second. But human grandmasters usually only consider 3 or 4 moves during their typical two-minutes of thinking. The AI guys still can't figure out how the grandmasters just "know" which 3 or 4 moves to consider.
It's hard for me to get excited about a computer playing chess. It's like watching a computer randomly generate a trillion different 10 line poems and then picking one and saying, "Look, it's an artiste!"
There's also the issue with colors having different meanings by culture. I once read that the international space station had to be designed specifically with that in mind because some cultures (like Chinese) tend to associate good fortune and the like with the color red. Not so good if you want to put a big red button up and make people think twice about hitting it.
I am a patent litigator (meaning I mostly kill patents; I don't create them), and this of course is big news in my practice today, and will be very helpful in several on-going cases.
Here's my take: the case allows lawyers to tell a story about the prior art that makes sense. Previously, the Federal Circuit had shut you down if you couldn't point out explicit prior art for every little detail of the patent that you wanted to invalidate. That's exactly what they did in the case under review. The defendant pointed out that all of the basic problems had been solved in other patents, but the Federal Circuit responded that they hadn't been solved with the intent of solving the particular problem the patent said it was trying to solve. Well, so what? We should be able to assume (and argue) that ordinary engineers have a little common sense and creativity in determining how to use previous inventions. We shouldn't have to show the courts that there was an exact road-map for an idiot to follow and arrive at the precise "invention" at issue. That's the big help in this case.
So from my point of view, here are the two big advances from KSR today:
"A person of ordinary skill is also a person of ordinary creativity, not an automaton." (Page 17) This should be obvious, but it will help that the Supreme Court said it. It will be quoted a lot because it shows that we can assume that the ordinary engineer can make simple inferences and doesn't need his hand held.
"When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense." (Also page 17.) This is the Supreme Court's long-winded way of boosting the "obvious to try" argument. The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.) But I read this opinion as saying that "obvious to try" goes a long way towards showing that it was "obvious to do". In other words, if it was obvious to try and the trying used predictable methods and yielded a predictable result, then the whole thing was likely obvious. So this will help as well.
Finally, it is going to be interesting to see how the PTO itself deals with this opinion. If an examiner comes back to you and says, "no I think this is obvious," it's very difficult to "prove" otherwise, especially early in a product's life cycle when you don't have market data to show how successful it might be, etc. At least under the previous test, the examiner would have to point out all the explicit references in the prior art. Now they apparently just have to point out the basic elements, and then say, "in their opinion," a person of ordinary skill and creativity would have been able use these elements to make the invention. How do you argue with that? "No, I don't think ordinary people are that creative"?
So, you fix one problem and possibly create another. The opinion shifts the debate to help prove obviousness, but it doesn't solve the underlying problem of what obviousness means. So it goes.
Slashdot Mirror
This is a brilliant insight about the larger point of truth, although Wikipedia certainly differs because there is little or no gateway controlling *who* can aggregate the information and sources. Traditional media are at least supposed to impose some form of training requirement on those aggregating the information.
Interestingly, this issue has repeatedly arisen in the law because truth is central to our entire justice system. The entire logic behind the hearsay rules is that some sources are reliable and some are not. And even then there are still a ton of exceptions to hearsay, which reflects our society's judgment that even some forms of hearsay are reliable enough to serve as a source. These rules have been evolving forever and there are still large disagreements over them. There's no clean solution to this problem and I think the experience of the law demonstrates that.
Ironically, the law does prescribe a solution. The judges do their best to filter evidentiary sources based on the rules (hearsay rules included) and then they throw questions of "truth" to twelve regular jurors and literally appeal to the authority of the many.
And yet, somehow they got by.
I think the entire point is that some people *didn't* get by. Only the lucky ones are standing around telling us how they all "got by" in the old days.
You can prove the Earth is round by looking at a lunar eclipse.
I'm not quite sure this is true. First you have to assume that it's actually the Earth's shadow. Then you have to assume that you aren't simply seeing the shadow of the flat, round Earth when the Sun is directly behind it, which is exactly what happens during a lunar eclipse.
Sovereign immunity is just a hanger-on from the days of the monarchy. The U.S. has allowed itself (i.e. the taxpayers) to be sued for a variety of reasons exactly because it is a government by the people for the people. I think we all want to be fair and just.
But if they just opened up the spigots and let every nut job sue for losing their welfare benefits or not getting as much social security as they were promised, it'd be a total waste of money and then people would call the laws idiotic for allowing people to sue for things like that. It's just a policy decision, nothing nefarious.
It is inspiring to see so much human effort put into exploring the nature of our existence. Our species is truly just trying to make sense of it all.
"The cure for boredom is curiosity. There is no cure for curiosity." Strap yourselves in! Good luck everyone!
He's not justified, but it does paint a more complete picture of how this could have happened. Any decent manager would never have let it get to that point. Sounds like there is more than enough blame to go around and that Childs is a relatively typical, arrogant, super-competent, super-stubborn geek. He'll no doubt be remorseful after he cools off. He probably already is.
But $5 million bail? C'mon. A grown-up needs to step in here and manage the obvious emotional component of this case.
I don't think Rowling should be able to kill the Harry Potter Lexicon either, but to call her "a pretentious, puffed-up coward" and "lack[ing] a brain, a heart and courage" is going a bit overboard. It's a tough case and certainly a far cry from the purposefully abstract "comparison" with Ender's Game that Orson Scott Card uses. Maybe he makes a different decision if someone publishes an encyclopedia on the very same characters and universe that he created, but let's not act like she burned an original copy of the First Amendment or anything. Reasonable people disagree on this one.
The Supreme Court's decision in Grokster didn't create contrib liability; just clarified how it could be proved. Congress has had many, many opportunities to write it out of existence and has never done so... write your Representative.
However, the Court did reason that its ultimate holding was consistent with the purpose of the Audio Home Recording Act, which supposedly was to "ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." 180 F.3d at 1079 (citing S. Rep. 102-294). And then the Court said the following:
And then the company that made the Rio went into bankruptcy and Apple made a gazillion dollars. Sometimes it's good to be second to market.So what exactly do they mean by "human intelligence"? A system that can finally translate language decently? A computer that could actually drive a car in LA traffic? A system that can play chess without a gigantic brute force tree search? These are radically different problems.
So if they're talking about a system that can solve all of these problems and then become the synergistic whole, feeling, emoting, nuanced human brain, then this is crap. Predictions about AI have almost always been utterly, utterly wrong, even for simple processes.
I am reminded of the famous Emerson Pugh quote: "If the human mind was simple enough to understand, we'd be too simple to understand it."
This is just a decision about discovery. It says that the copyright owner is entitled to know who posted the original letter. This allows the online provider to "get out of the way" of the parties who actually have a dispute here (the alleged copyright owner and the poster). The order does NOT say that the copyright owner has valid claim for copyright infringement or that it will win that claim. In fact, as the parent points out, the court acknowledges that there may be some problems with the copyright owner's case if it goes forward.
I have serious doubts that an appellate court would ever uphold copyright infringement claims against this type of posting. But the court is more than willing to let the copyright owner at least know who it is they have a dispute with.
This is search incident to *arrest* not search incident to a lawful stop. You got arrested and are going to jail. Of course police can search your things. Gershowitz is arguing that perhaps the rule should be changed for items that have the possibility to contain a lot of information probably not related to the reason for your arrest. But it should not be much of a surprise that you are going to get searched, and pretty thoroughly, when you get arrested.
PLEASE, PLEASE, PLEASE create a regular document retention policy that mandates the deletion of all unnecessary emails and other e-documents on a regular basis. You CAN delete these files and you should. But if you wait until the lawsuit is filed, it's too late - and now we have to wade through all this crap. That's the point.
You don't need any evidence to file a lawsuit. There's a lot of reasons for that, but one of the most important ones is that often it's the defendant who has got the evidence. That's particularly true in employment discrimination cases for example. If the courts required evidence just to file, a lot of people wouldn't get their day in court and the justice system wouldn't function as intended.
I'm not going to defend SCO by any measure, but they would probably say that they didn't have any evidence because Novell was hiding it all. And that they need discovery to get the incriminating emails, meeting agendas, testimony from employees, etc. So there's a lot of discovery for you.
The whole process sounds very odd and wasteful from the outside, but there is a legit reason for the way things work. A cheaper alternative is arbitration, which we all agree to whenever we click "I accept." So maybe that will change soon, but I don't necessarily think that will be to consumers' benefit.
The things is, you gotta put your money where your mouth is. My state, California, has had a court system begging for money for years just for basic services (like so court houses won't fall down in the next earthquake). And the feds aren't any better with Chief Justice Roberts continuing to beg Congress for money. Like everything, the system would be a lot faster if they had more personnel. But most of these courts are so backed up, you're lucky to get to trial in two years even if both sides push as hard as they can. And if one side really doesn't want to go... well then it's going to be a while.
There's an old saying in the legal community: you can have good, fast, or cheap. Pick any two.
Believe it or not, there is actually a 1990 statute regarding the patent question: 35 USC section 105 (Inventions in outer space).
Basically, if the invention is made, used, or sold on an outer space object under the jurisdiction or control of the U.S., it's considered to have been done within the U.S.
I don't know of any specific statue regarding invention, but there's an analogous one on inventions made abroad (35 USC 104), and it says that if you call the U.S. home and you are in another country on behalf of the U.S., then you are considered to have invented it in the U.S. as well. All very rationale stuff.
Actually, not to further nitpick or anything, but most patent suits don't end in court decisions; they end in settlements. And settlements don't typically have much effect outside of courtrooms. (Unless it's a truly massive settlement - but even the RIM/Blackberry settlement didn't really affect consumers.)
If Sandisk is very successful and an injunction issues, then that could have a much bigger impact outside the courtroom than if money simply changes hands. My point is simply that a lot of different things could happen to resolve the suit. Some results would affect us all, some would probably only affect the defendants' earnings.
Whenever I see corruption like this I remind myself of our Founder's absolute GENIUS. The legislative branch creates independent prosecutor to investigate executive branch -> the people convict -> the judicial branch sentences -> the executive branch commutes -> the legislative branch goes nuts. It's a perfect series of checks and balances.
Meanwhile, we go about our lives content with the knowledge that our government is far too involved arguing about whether some exec in the Vice-President's office lied about an investigation in which a crime may or may not have actually been committed (no one was ever charged) to actually scheme up ways to consolidate power and threaten the Peoples' freedom. And in the end, no branch got too much say and it was the people who were required to actually convict the dude.
Thank you Adams, Jefferson, Franklin, and Hamilton. This was the true gift of our Founding Fathers; not a perfect government. They knew that men will never change.
Obviously grandmasters are dismissing millions of other options. And then they actually are considering only 3 or 4 moves.
The point is that humans can, in a half a second, do something that the fastest computers take several minutes and billions of discrete calculations to do. Now THAT's impressive. It's not so impressive that the computer can do a tree search faster and faster and faster. It's a sign of how difficult AI really is if the best we can do to emulate human thought is a super fast tree search, which is of course not how humans actually do things in the first place.
The amazing thing is that the computers only beat humans by looking at every single possibility. I think Deep Blue processed something like 200 million chess positions a second. But human grandmasters usually only consider 3 or 4 moves during their typical two-minutes of thinking. The AI guys still can't figure out how the grandmasters just "know" which 3 or 4 moves to consider.
It's hard for me to get excited about a computer playing chess. It's like watching a computer randomly generate a trillion different 10 line poems and then picking one and saying, "Look, it's an artiste!"
There's also the issue with colors having different meanings by culture. I once read that the international space station had to be designed specifically with that in mind because some cultures (like Chinese) tend to associate good fortune and the like with the color red. Not so good if you want to put a big red button up and make people think twice about hitting it.
I am a patent litigator (meaning I mostly kill patents; I don't create them), and this of course is big news in my practice today, and will be very helpful in several on-going cases.
Here's my take: the case allows lawyers to tell a story about the prior art that makes sense. Previously, the Federal Circuit had shut you down if you couldn't point out explicit prior art for every little detail of the patent that you wanted to invalidate. That's exactly what they did in the case under review. The defendant pointed out that all of the basic problems had been solved in other patents, but the Federal Circuit responded that they hadn't been solved with the intent of solving the particular problem the patent said it was trying to solve. Well, so what? We should be able to assume (and argue) that ordinary engineers have a little common sense and creativity in determining how to use previous inventions. We shouldn't have to show the courts that there was an exact road-map for an idiot to follow and arrive at the precise "invention" at issue. That's the big help in this case.
So from my point of view, here are the two big advances from KSR today:
This should be obvious, but it will help that the Supreme Court said it. It will be quoted a lot because it shows that we can assume that the ordinary engineer can make simple inferences and doesn't need his hand held.
This is the Supreme Court's long-winded way of boosting the "obvious to try" argument. The Federal Circuit has for a long time rejected the argument that it would have been "obvious to try," instead saying that it needs to be "obvious to do". (For example, it may be obvious to try to build a time machine, but that doesn't mean the invention of a time machine would be obvious.) But I read this opinion as saying that "obvious to try" goes a long way towards showing that it was "obvious to do". In other words, if it was obvious to try and the trying used predictable methods and yielded a predictable result, then the whole thing was likely obvious. So this will help as well.
Finally, it is going to be interesting to see how the PTO itself deals with this opinion. If an examiner comes back to you and says, "no I think this is obvious," it's very difficult to "prove" otherwise, especially early in a product's life cycle when you don't have market data to show how successful it might be, etc. At least under the previous test, the examiner would have to point out all the explicit references in the prior art. Now they apparently just have to point out the basic elements, and then say, "in their opinion," a person of ordinary skill and creativity would have been able use these elements to make the invention. How do you argue with that? "No, I don't think ordinary people are that creative"?
So, you fix one problem and possibly create another. The opinion shifts the debate to help prove obviousness, but it doesn't solve the underlying problem of what obviousness means. So it goes.