In fact, if you were to follow the rules used in the USPTO, it's darn near impossible to claim that something is obvious. I'm glad I'm here in Canada, as our rules, while still more restrictive than regular folks expect, aren't nearly as bad as the US.
News flash! Proving obviousness in the US got easier on April 30 of this year, when the Supreme Court handed down an opinion that opened the door to several avenues of obviousness analysis. Although the Court didn't specifically say so, one of the permitted avenues of analysis seems to be the "inventive step" analysis applied by many other jurisdictions.
I made mention to this Supreme Court case, and provided a link to it,
in the other thread.
Obviousness still has a specialized legal meaning, and it's more than just an ordinary guy putting his hand on his hip and saying "Looks kinda obvious to me." No, you have to look at it from the point of view of a hypothetical person: "one having ordinary skill in the art." Would this hypothetical person think it was obvious?
Basically, the lowly examiners take a look at what has been done before, and compare it to what is described in the patent application. To be nonobvious, the claimed invention has to be obvious from the point of view of the hypothetical person "having ordinary skill in the art." Maybe it would be obvious because the purported inventor is making a simple substitution of one element for another (e.g., replacing a plastic stopper with a silicone stopper of basically the same size, shape and elasticity). Maybe it would be obvious because the problem is well-known, and various solutions to similar problems are equally well-known. Maybe it would be obvious because there were clear market-driven technological trends going in that direction anyway, so following the trend is obvious. (This was the analysis the Supreme Court used.) Maybe it was obvious because the resulting invention has no emergent properties. (Sure, nobody's ever combined a golf tee with a toothpick by gluing the two together, but the toothpick doesn't do anything with respect to the function of the tee, or vice versa.) Maybe it would be obvious because someone previously suggested the combination, even if he didn't describe it specifically or in detail.
What an examiner is NOT supposed to do is look at the patent application, and say, "Now that I know how it's done, it would have been obvious." This is called a "hindsight-based" analysis, and it is basically using an inventor's own document against him.
It is very easy to see how examiners can get caught up in a hindsight-based analysis. Some of them suffer from chronic hindsight. What I'd like to do, if I ever had to have another meeting with an examiner in Washington DC, and if this examiner tried to lay some hindsight-based obviousness crap on me, I'd show him a magic trick.
Really, I would. I'd show him a magic trick.
And I'd say, "That's a pretty good trick, isn't it? Want to know how it's done?" The examiner would almost certainly want to know how it's done, and I'd tell him. The secret would be simple.
Sickeningly simple. The examiner would feel like a dope for falling for the trick.
And then I'd pose the question: "Knowing now that the trick was really,
really simple, and knowing what you know now, was ... it ... obvious?"
And then I'd argue that my client's invention wasn't obvious, either, for basically the same reason. When an examiner knows how something is done, the examiner has to think back to the state of knowledge before reading the patent application that explained how it was done.