Removing the obviousness standard solves litigation.

[*20] Obviousness is the most frequently used basis for judicial invalidation of patents. 95 It is also the most frequently asserted validity challenge. 96 With obviousness removed as a basis for post-issuance invalidation, a competitor is less likely to commence litigation that challenges patent validity. Patent litigation can be wildly expensive, 97 and unless an Origination Patentee missed, ignored, or mischaracterized a prior art reference, she can be fairly confident that her intellectual property will be protectable for the statutory period. If the PTO errs by granting an Origination Patent to a minimally innovative, "obvious" invention, competitors and society at large should find consolation in the fact that the unearned monopoly will last, at most, five years. 98 The Supreme Court long ago asserted that delegating the job of "sifting out unpatentable material" to the PTO has a laudatory effect on certainty and the overall stability of the patent system. 99

Revolutionary, pioneering patents, when widely and aggressively enforced, are capable of having a negative, depressive effect upon subsequent experimentation and innovation by others. 100 Minor inventions usually can be designed around. Because the judiciary uses commercial success as a proxy for nonobviousness, 101 only unremarkable, poorly selling inventions would likely be invalidated on obviousness grounds anyway, and such Origination Patents are unlikely to do much societal harm during the period they are even erroneously in effect. Moreover, patents are not usually challenged until several years after they have issued. 102 Indeed, "litigated patents are generally not newly obtained ones; on average, well over a decade elapses between the filing of a patent application [*21] and a court's ruling on the validity of the patent." 103 By the time a competitor feels a need to challenge an Origination Patent, regardless of whether it is a strong patent or would have been vulnerable to invalidation on obviousness grounds, it will be near expiration.