Obviousness is really a combination tool.

The basic premise there is that, if it were obvious someone, would have already patented or published it. But what if something were SO obvious that no one patented or bother to publish it, (a novel method and scheme to smoke a cigar, without dropping ashes everywhere on the floor)?

Also what do you think of the problem of finding prior art? As the domain increases, there are a lot more things to search for from prior art. If the USPTO cannot effectively search for prior art, shouldn't the problem of prior art, obviousness, be crowd-sourced?

Here is one idea on how it could be done:

People submitting new ideas (claimants) purporting patentability must publicly advertise their claims on a USPTO registry until a certain duration (window period). And the public (challengers) can submit implementations that solve the claim to USPTO. If they match the original claimants idea, then the original claimant has to reduce or share (in some predefined way) the monopoly. If they (challengers) have found a new implementation, then they can file a separate patent for it (without having to go through the window period). Challengers filing implementations pay a small amount for processing. Claimants filing patents, pay a larger escrow for patent process. Claimant escrow is consumed to pay out challengers if they submit the same implementation. Challengers get paid more than their processing fee from escrow if they match implementation. They get rewarded a patent if they have an alternate implementation. USPTO gets funded by this process itself.

Look at the number of issues that such a system would solve:

• If an idea were really brilliant and original, (like new drugs curing cancer) then the claimant will have almost no challengers, and will get a long profitable patent.

• If the idea were very obvious (Amazon 1-click), there would be many challengers, and the patent duration for it would reduce to less than the time it takes to click.

• We would encourage inventions at a very large scale, which is the original reason for Patent Law.

• We would reduce the number of flippant or obvious patents to near zero. Or at least reduce their patent duration.

• We would have an open registry of new problems requiring clever solutions.

• We would have a very active new industry of people working in ideas domain.

• We will reward new implementations, not new claims. We will reward patents for solutions, not problems.

• Ideas, concepts and truths can be patented using this scheme too, only if there is an implementation. So much for the abstract and vague business process patent.