In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant

In the context of standards that could or should be changed to reform things, the traditional 'person of ordinary skill' standard need not be held as a constant. For example, 'obviousness' could be more expansively construed as being from the perspective the kinds of people "skilled enough they are professionally tasked with inventing new approaches". The relative preponderance of teams finding a particular solution, versus trying and failing, does seem relevant. (If 2-out-of-2-teams succeed, maybe they are geniuses, but the 100% success rate cannot disprove the hypothesis that the solution is obvious. If only 2-out-of-30 succeed, maybe there's rewardable inventiveness there.) Still, when there are 2 or more cases of independent invention, that should be economically/legally relevant. This is especially true if one of the inventors didn't pursue a patent. While not be proof of traditional 'obviousness', it is evidence that the invention was "evident enough to be discovered as needed without patent incentives"... which sounds to me like the economically-ideal standard. (And wouldn't that be a nice counterbalance to the 'patent everything defensively' scramble? That is: by inventing and using something without patenting it, not only would you have an absolute immunity from infringement, but also establish a presumption that specific practice was never deserving of patent protection in the first place.)