> 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

> 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.