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Try to get your hands on The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity by Dutfield and Suthersanen. It's quite interesting.

They describe how about 100 years ago, the "inventive step" barrier was consciously and on purpose lowered. The reason was that fewer and fewer innovations were ground breaking and revolutionary, but more and more of a cumulative nature.

As Dutfield and Suthersanen put it: "This step may be referred to as the killing of the flash of genius concept, and effectively kept the innovation threshold low."

And the industry, in particular the chemical industry, eagerly supported this change. After all, this way they could monopolise all their cumulative innovations and get more patents for their portfolios.

Dutfield's and Suthersanen's conclusion: "So we can see that the reforms that sought to protect corporate cumulative innovation were successful, but had built-in defects from the perspective of competitors seeking to enter the market either as imitators or innovators. The killing of the flash of genius concept served as an enabler to anti-competitive behaviour by allowing firms to raise the cost of follow-on innovation and raising barriers to market entry that could become excessive. And it still appears to do this."

So it's a conscious decision: "You TOO can get your patent! You don't have to be an Einstein, apply now! And as the Commission recently still argued: more patents mean more innovation, just look at the statistics! Number don't lie! So this is actually a good thing!"
 
 

 

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Well, I do not think that the present discussion should seriously be seen as related to any such changes a hundred years ago. Moreover, there should be no problem in having a patent system granting exclusive rights even if the inventor is not of the sort of "Einstein". There are a lot of very relevant high-potential inventions for which the inventor or his successor in title deserves an exclusive right for twenty years despite the fact that those inventions are not to be judged ground-breaking on the highest level of the history of technology.

But you might perhaps get a grip on an edge of the present problem if you manage to interview some of the elder German patent attorneys of 65+ years or so on their experiences in patent prosecution proceedings before the German Patent Office in earlier times. Not only a few of them might be eager to tell you with some glowing in their eyes that in the 60s or 70s of the past century they had to endure long disputes with the Examiner on the inventive step for virtually each and every patent application whereas today, so they might tell you, arguing in favour of the inventive step is merely seen as some obligatory act without much enthusiasm on both sides.

The problem remains, however, that there seem to be no hard facts obtained on the basis of rigid empirical research that this personal assessment given by some practitioners is indeed a true mirror of the reality.
 
 

 

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I do see it as being related, given that most patents nowadays are in fact on follow-on innovations and small steps (often deemed trivial by "persons skilled in the art"), not on groundbreaking new things. Your latest EPO case law post demonstrates this fact once more.

It is not clear to me what you mean with "relevant high potential inventions". Innovations with a big economic potential?

Also, as far as I know an inventor never "deserves" anything in the patent system. Patents are not natural rights which are deserved because of some performed labour or attained result. They are purely an economic incentive system which only should be applied when necessary (and otherwise the government should stay out and let the market do its thing).

The patentability rules are simply an attempt to get some rules which can be "easily" applied with the goal of separating the chaff from the wheat. They're not a literal translation of economic policy into rules, and therefore interpretation should always be based on macro-economic as opposed to legalistic grounds (let alone "natural rights" based grounds).

That said, I have also heard from some law scholars that the patent offices were more stringent in the past, and that they've lost somewhat sight of the fact that their primary client is society/the market and not the applicant of the patent.

In fact, one of the ways the EPO promoted itself in the early days to convince Germans to go there instead of to the German patent office next door, was supposedly by advertising its applicant-friendliness and contrasting that to the DPMA (but this again is only hearsay from a law scholar I know).
 
 

 

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As a former EPO examiner now working for the private side, I can attest to the fact that examiners feel often quite frustrated themselves at the low level of inventiveness required to get an application through.
I also know that the difference between former German practice and current European one is that German law required a quantitative "Erfindungshöhe" ("level of inventiveness"), whereas the European Patent Convention merely requires a qualitative "inventive step". So, even a slightly inventive application can be granted.
However, it is wrong to believe there has been a concerted strategy to diminish the requirement of inventiveness. The problem is that the process, particularly during examination, and even more in examination appeals, is very one-sided: There is one side arguing for grant, and a neutral "judge" (either the examiners or the Board of Appeal) taking the decision. It isn't (and shouldn't be) the examiner's job to argue against granting the patent. The result is that usage, and even more so the case law, slowly slides towards applicants' favour. What the patent system may need are "Devil's Advocates", arguing against grant throughout the whole examination and appeal procedure. The European system of opposition is good, but it may not be enough.