The logical fallacy at the core of patent law, what does non-obviousness test?

IMO the OP has not understood the obviousness test. Its not that a person "skilled in the art" would never make the invention, but that it would require many attempts, thus justifying the reward of a patent for their efforts. Thus it's not "obvious to a person skilled in the art" which construction will succeed.

These days, of course, most software patents should fail this test.

This article is confused about the obviousness standard and the meaning of the phrase "person having ordinary skill in the art" (PHOSITA). The phrase is a legal concept, kind of like the "reasonable person" standard in other areas of law.

Think about the number of things in your job that you use uncritically. Maybe they could be optimized with a lot of effort, but none have a specific, obviously busted thing worth stopping to fix. That's what "non-obvious" means in the patent sense. It's not that PHOSITA are less creative or intelligent, it's that the ordinary practice don't require applying that creativity and intelligence to the problem the patent solves. The whole idea behind patents is that it incentivizes people to invest time in improving workflows.

There's still subjectivity, but if there's an improvement over the state of the art that no one has made before and there's no hard evidence suggesting that everyone in practice was about to make the improvement, then most patent offices will consider that improvement non-obvious.

Or, stated in the European way: obviousness isn't about whether people of ordinary skill could come up with the invention, it's whether they would come up with the invention had it not been patented (this is the "could-would" standard).

The canonical cases—both of which the Supreme Court found to be obvious—are a 1999 patent application for replacing the hydrolics connected to a car's gas petal with a microcontroller, and a 1950 patent for adding shock absorbers to a plow (just as tractors hit the general market). In both cases, the Supreme Court said those patents were obvious, but the fact those cases made it so far suggests they're right on the line.

Are patents even worth today other than for the medical sector? Like, lots of things can be covered by copyright anyway. For example there is absolute 0 point in software patents, software is covered by copyright and society does not benefit for covering with patent law the parts that are not covered by copyright as they would be invented anyway, and a patent on non-copyrightable software stuff is the same as not being disclosed to the public as by the time the patent expires, it will most likely be too late, only thing it does is prevent other people from inventing it again, which I think is a worse consequence.

The only sector where I see that patents still make a lick of sense for society is in the pharmaceutical sector as medicines are very expensive to develop and would not be properly covered by copyright.

Maybe it is just me but I just fail to see the point of patents for anything else in the world of today, they are a net negative for society.

I guess patents are meant to reward above-average inventors. So isn't this a feature, not a fallacy?

Also it seems that prooving inventor capacity in this way is better than IQ test, suggested in the text.

Is > For an invention to be patentable, the core inventive concept must be beyond the grasp of those with average powers of imagination.

Really the case? I had always interpreted the obviousness test as more ‘an average person familiar with the state of the art would not immediately think of the invention’, not that they never would.

As someone with a Philosophy BA and a keen but very amateur interest in copyright law, this development fascinates me and I desperately want to understand it. Can anyone give me an example of where this fallacy would lead to unfairly issuing or failing to issue a patent?

> Thus, the statement ‘An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art […]’ (s 3 Patents Act 1977) is logically equivalent to ‘An invention shall be taken to involve an inventive step if the inventor’s powers of imagination are above those of a person skilled in the art’.

Um, no? First of all, if A is "this invention is not obvious", and B is "the inventor has higher-than-average powers of imagination", then the first sentence is A -> B, and the second sentence is B -> A. That is, if A is not obvious, it may be that the inventor is more imaginative; but just because the inventor is imaginative doesn't mean that every idea she comes up with is non-obvious.

Kind of stopped reading after that.

In any case, just because "this invention is not obvious" doesn't mean it can only be seen by people with higher-than-average powers of imagination; you can hit upon things either by thinking hard about the problem, or by just trying thousands of things until you hit upon one. However it's done, the idea is that 1) someone has invested a lot of effort to find a new technique 2) this technique is easy to copy once you've been told about it. We want to encourage people to do this work and then share it with others, so we reward them with a patent.

Whether the effort was purely mental, or a mix of mental and experimental, or pure brute-force experimental doesn't really matter.

I think this is a bit of a strawman argument.

The "non-obvious" test isn't a test of the inventor's imagigination, but a test of the trviality of the inventive step. And it isn't a particularly high barrier to overcome in most cases.

For example, one might invent a novel metal alloy, which would be patentable. However, "inventing" objects commonly made from metal (e.g. a knife) now to be made from this novel alloy would not be a creative step, and so not patentable.

or, "I know it when I see it."