In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO decisions as to what is obvious. This mechanism should provide timely advice in a cost-effective manner while minimizing risks of bias and conflict of interest.
Eisenberg, Rebecca S. "Obvious to Whom? Evaluating Inventions from the Perspective of PHOSITA." Berkeley Tech. L. J. 19, no. 3 (2004): 885-906.