For sure the actual award would be a matter of judgement, as would any challenge in court. But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross.
This is what fundamentally results in patent races, where any ideas that can claim to take any nominal amount of intellectual effort to think of must be rushed to the patent office before the competitor discovers it themselves. Because it doesn't matter for elligibility if three people all thought on a problem simultaneously and all stumbled on the same answer, as long as that answer took at least a little time to discover in each case.
> But right now patents are judged on whether they were “obvious to the person skilled in the art, at the time the application was filed”, which is both no less a matter of judgement, and a bar much easier and fuzzier to cross.
Yes, and right now about the only way to fail the "novel and non-obvious" requirements at the time of application is to try to patent something which already exists. (And even those cases sometimes slip through the system.) A patent might be invalidated as obvious later if someone else comes up with the same thing and can demonstrate that they had absolutely no knowledge of the patent or anything covered by it, but that's both unlikely (for products generally available to, and discussed by, the public) and an extremely hard thing to prove even if true.
In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else. This is basically how things stand now with the assumption that the invention is non-obvious. Getting this overturned would be at least as hard as getting a previously issued and productized patent invalidated for reasons of obviousness following "independent" reinvention.
> In the absence of any possibility of hard evidence to the contrary, the default assumption is going to be that the invention would not be independently invented or productized by someone else.
Obviously if the patent office ignores the change, the change wouldn't help. That's a fairly meaningless analysis though. I am not saying the patent office should deny specifically only patents they can definitively prove will be invented in the next 15 years. I am saying they should use that as the line by which they estimate novelty. Patent applications are not like criminal cases, there need be no beyond reasonable doubt.
This is what fundamentally results in patent races, where any ideas that can claim to take any nominal amount of intellectual effort to think of must be rushed to the patent office before the competitor discovers it themselves. Because it doesn't matter for elligibility if three people all thought on a problem simultaneously and all stumbled on the same answer, as long as that answer took at least a little time to discover in each case.