"My reference to drug patents was intended as an example of a typical case"

Drug patents are perhaps the most unusual type of patent. They have special time extensions, in part because they have an extremely high burden of proof before they can be released, and information about the drug is public long before it can be sold. There are also special exceptions to allow countries to use a patented drug in case of an epidemic.

So I don't think it's useful to regard drug patents as 'a typical case.'

"I want the burden to be on the applicant to prove that it is nonobvious"

As I said, that requirement is already present. In that Graham v John Deer case you mentioned: "The determination of "nonobviousness" is made after establishing the scope and content of prior art, the differences between the prior art and the claims at issue, and the level of ordinary skill in the pertinent art."

In that sentence you included "alleged infringer". I think you've mixed two different phases. In the first phase, the patent office must be satisfied that the patent is non-obvious. Once done, the applicant is granted the limited monopoly and the right to sue infringers. The only defense of the alleged infringer is to show that the patent office's determination was incorrect, and one way is to show that it was obvious.

Why should the person with the patent grant have to re-establish non-obviousness when the patent office has already certified that it's non-obvious? More specifically, couldn't the patent grantee simply resend the same information used to get the patent in the first place?

"I also want objective evidence to be required so the question isn't just a judgment call."

Here's the relevant citation from Graham:

> This is not to say, however, that there will not be difficulties in applying the nonobviousness test. What is obvious is not a question upon which there is likely to be uniformity of thought in every given factual context. The difficulties, however, are comparable to those encountered daily by the courts in such frames of reference as negligence and scienter, and should be amenable to a case-by-case development. We believe that strict observance of the requirements laid down here will result in that uniformity and definiteness which Congress called for in the 1952 Act.

The courts seem to believe (at least in 1966) that the current factors are reasonably objective.

This is all the more interesting because, on the topic of journals you wrote "I think courts can tell the difference between well-established, prestigious journals and fly-by-night operations."

I agree with you. But means that a court uses to make that judgement with a journal is the same means that a court uses to judge non-obviousness in a patent, so you've only redirected the burden of proof, not made it higher.

"Do you have a counterproposal?"

Most assuredly I do not. My attempts at understanding the complexity of the patent system flounder every time.

For example, if the patent lifetime is reduced to 10 years, then I don't know how to handle drug patents, which have a high cost and long public exposure before they can be sold. Perhaps there's a viable alternative business model, but it calls for a huge shift in the industry.

And so on, with more variations than I care to discuss.