[justinsb]

That's the big difference between patents and copyrights. With a copyright, you can only infringe if you copy code. With patents, you can infringe if you implement the same idea. I think it makes many people uneasy with the patent system if someone built the same system without knowledge of a patent. The non-obvious clause is supposed to protect against that (and there are valid flaws in the implementation of this aspect of the patent system!)

It's not clear to me whether in this case the check scanning systems were in fact independently invented; there's certainly a hint in the article that meetings took place and the banks only implemented the idea once it has been disclosed to them ('willful infringement' results in triple damages, which could well explain the magnitude of the licensing amounts)