| if they were so obvious beforehand, somebody would have: a) implemented it into a working system (prior art) b) patented it themselves first It seems to be fairly common that somebody already did (a) but chose to forgo (b). spent $130 million dollars just in the R&D phase for what amounts to…. Obvious? Perhaps. But nobody had gone through the trouble to actually do it, and spending that kind of overhead was a significant risk. How much of that was it actually necessary to spend just to come up with the concept? Evaluation of the available COTS components, writing the perl scripts and cron jobs, management overhead, etc. are costs a competitor would have to incur as well, which makes them not part of the cost a patent is meant to compensate for. The fact that nobody had done it before does not necessarily mean nobody was clever enough -- just that nobody who was clever enough had had the problem this product was meant to solve, and being a solution to a novel problem does not make it patentably non-obvious. In other words, if the ideas are obvious, a piece of software that does this should be buildable. I don't think a computer program is likely to cover everything that would count as obvious. "A person of ordinary skill is also a person of ordinary creativity, not an automaton." - SCOTUS opinion on KSR v. Teleflex |