[rlpb]

> That's not at all how the prior art base of the USPTO, nor any other patent office, is defined.

Prior art isn't the issue.

To be patentable, an invention has to be: 1) non-obvious (to someone skilled in the art); 2) novel; 3) (other things).

Prior art addresses the novelty side of things. Not the non-obviousness side.

The requirement of non-obviousness sounds great in theory, but is in reality a joke, since the only test used is that of prior art.

It is possible for an invention to be obvious and yet for no prior art to exist. In technology one (non-obvious, novel, patentable) invention often enables a big pile of (novel but now obvious, and therefore not patentable) inventions. Using prior art as the only test for obviousness ignores this case entirely.

[michaelolenick]

Yes - this is what I meant, though I think it's also what I wrote. It's not prior art; it's obviousness, and the USPTO defines non-obvious as published, co-mingling the two. So we see lots of patents for obvious tweaks from one platform to another. For example, the same functionality ported from local computer programs to web-based systems, client-server architecture, and now mobile all seems to qualify as non-obvious. In reality these ports are entirely obvious to anybody who understands that the underlying tech is basically the same.

[axman6]

I would strongly dispute this, and ask that you provide some proof that this happens. Examiners are quite well versed in their technology areas, and can see when a known idea has just been tweeked.

[axman6]

Prior art most definitely addresses the non-obviousness side of things. To show something is non-obvious, examiners will usually take two documents which together disclose all the features of the claimed invention, and say it would be obvious to combine them.

This is how it works in the US (and is quite frankly often quite unfair to the applicant, because the two documents may indeed have all the features, but the invention lies in the idea of combining these unrelated idea to result in something that is greater than the sum of its parts).

In most large juristrictions (excluding the US), there must be something that would lead a PSA to combine the ideas in the documents. So for example, if a claim is to features A, B, C, D and E, then to combine documents X and Y, they should both disclose say features A, B and C, and then one may disclose D, and the other may disclose E. In the US, it is very common for the examiner to find documents which disclose A, B, C and D, and then find a document that discloses E and has no relation to the first document (ie, the document is from a completely different field of endeavour) and combine them.

What this shows is that the US actually has a substantially higher standard in many ways than most countries. But the problem comes back to the prior art base; if you good citations are not found juring examination (and hey, examiners are people like you and me), they cannot make a good case that the application is not novel or is obvious.

> The requirement of non-obviousness sounds great in theory, but is in reality a joke, since the only test used is that of prior art.

Well no, it's not. If the claim is to a known idea with a well known alternative in the art (say a house put together using screws instead of nails), then that's clearly not inventive, and an examiner will object as such. These are often known as workshop improvements or well known alternatives in the art.

My question to you is that if a) the law requires evidence, and not just opinion, and b) it must be shown that something is was obvious at the application's priority date, what else is there to use apart from the prior art? Me saying "Yeah, I'm pretty sure that would have been obvious 4 years ago" is definitely not good enough, so how can I prove it without other documents?

> It is possible for an invention to be obvious and yet for no prior art to exist.

But again, the law requires that you can prove that, and if it is the case that the invention is obvious, there will almost without a doubt be some document or documents which shows this. Human beings are pretty good at documenting pretty much everything, it's just a matter of being able to find it.

The issue here is that most people don't understand the role prior art plays. They assume that it's only used for objections based on novelty, and it this is certainly not the case. Maybe many of the readers here could spend some time actually reading the objections given by offices like the USPTO and see that actually, the way they thought things should be run, but assumed they weren't, are actually standard practice.

If you believe you have proof an accepted application is not novel, or is obvious, then by all means, get on Ask Patents and submit it. But it is not, nor will it ever be, good enough to just say "Aww yeah, pretty sure I would've come up with that, now I've read their solution", which is how most people start when talking crap about these matters. The difference between "I think that's obvious!" and "Here, I have proof that obvious!" is millions of miles, and it's about time HN readers realised this.