> Why would US patent law require both non-obviousness and lack of prior art, if the two are the same? The fact that claiming obviousness without prior art "never works" in the USPTO is just evidence of its deep dysfunction.
I agree that this conflicts with the colloquial use, which may be why European law says "lacks inventive step" instead of "non-obvious".
I get the impression that "prior art" to you means that the claimed invention was previously disclosed, which is a rejection under 35 USC 102. But that has to be exactly as disclosed. It's a high bar to meet.
> It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
> I agree that this conflicts with the colloquial use
The law you cite says, distilled:
A patent [..] may not be obtained [..] if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious [..] to a person having ordinary skill in the art to which the claimed invention pertains.
This is, if anything, a superset of the colloquial use of obvious. It covers not only everything obvious to practitioners in the field, but also things that are only obvious if you are familiar with every latest invention in that field.
To clarify: You seem to believe that looking at it in terms of "differences" narrows the scope of what is obvious. Why? "Prior art" is, literally, the sum of human knowledge and invention (up to some date). To say something is obvious in terms of differences from prior art means that, if there is an obvious way (to someone skilled in the art) to accomplish the claimed invention using any prior knowledge or invention, then that invention is itself obvious.
How could you read this any other way? How could something be obvious, but become not-obvious if you referred to prior art?
In US patent law, the word "non-obvious" refers to differences between the claimed invention and prior art. See 35 USC 103: https://www.law.cornell.edu/uscode/text/35/103
I agree that this conflicts with the colloquial use, which may be why European law says "lacks inventive step" instead of "non-obvious".
I get the impression that "prior art" to you means that the claimed invention was previously disclosed, which is a rejection under 35 USC 102. But that has to be exactly as disclosed. It's a high bar to meet.
> It smells like reasoning deformed by a broken bureaucracy, rather than sensible application of principles or the spirit of the law.
This speculation is neither necessary or helpful.