| There is some debate about what exactly is "obvious" to "a person ordinarily
skilled in the art", and indeed how do we define that person?
I would
approach it from an interesting perspective: if you were to specify a
problem
in detail, to which the patent is a solution, and go looking for
engineers who
would have the required experience or relevant knowledge to
solve that problem,
would they reasonably come up with the patented
solution - or something very
similar - with some probability?
Clearly, the engineers you would hire to
solve the problem are the relevant
"ordinarily skilled persons". Note that you
are not hiring engineers with skill
in the patented area, or knowledge of the
patented technique, but engineers
with knowledge or adaptable skills towards
the *problem* being solved.
And, equally clearly, if there is a measurable
probability - even if it is 1% or
less - that the patented invention could have
arisen as a solution by chance,
then that invention should be considered
"obvious". There might still be value
in publishing such a solution to reduce
the work required in the future, but
there is negative value in granting a
patent *monopoly* to such a work.
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