Actually, the Supreme Court has laid out some objective tests for nonobviousness, the so-called "Graham factors" [0]: (1) commercial success; (2) long-felt but unsolved needs; (3) failure of others.
It's my opinion that in order to sue for infringement, a patentee should first have to convince a court that their invention is nonobvious, using objective tests such as these. The PTO is poorly placed to guage nonobviousness, for several reasons. First is simply the sheer amount of knowledge required to be able to judge what is obvious and what isn't. Second is the incentive structure at the PTO: examiners are rewarded for closing applications one way or another, not for rejecting arguably obvious patents. Third is the fact that some relevant evidence, namely the commercial success of the invention, simply isn't available yet at application time, and won't be until months or years later.
So the situation we have now is one where the courts tend to defer to the PTO on obviousness, but the PTO isn't set up to do a good job judging it in the first place.
For all these reasons I think it would be better if the burden of proof were on the patentee to prove nonobviousness, rather than on the PTO or defendants to prove obviousness; and if that proof had to be given in a court before an infringement suit could even be filed. This system would be very efficient given that closer scrutiny would have to be applied only to those patents whose litigation was seriously contemplated, a small fraction of all patents issued.
IPR is a step in this direction, certainly, but I'm not sure it goes far enough.
It's my opinion that in order to sue for infringement, a patentee should first have to convince a court that their invention is nonobvious, using objective tests such as these. The PTO is poorly placed to guage nonobviousness, for several reasons. First is simply the sheer amount of knowledge required to be able to judge what is obvious and what isn't. Second is the incentive structure at the PTO: examiners are rewarded for closing applications one way or another, not for rejecting arguably obvious patents. Third is the fact that some relevant evidence, namely the commercial success of the invention, simply isn't available yet at application time, and won't be until months or years later.
So the situation we have now is one where the courts tend to defer to the PTO on obviousness, but the PTO isn't set up to do a good job judging it in the first place.
For all these reasons I think it would be better if the burden of proof were on the patentee to prove nonobviousness, rather than on the PTO or defendants to prove obviousness; and if that proof had to be given in a court before an infringement suit could even be filed. This system would be very efficient given that closer scrutiny would have to be applied only to those patents whose litigation was seriously contemplated, a small fraction of all patents issued.
IPR is a step in this direction, certainly, but I'm not sure it goes far enough.
[0] https://en.wikipedia.org/wiki/Graham_v._John_Deere_Co.