In Voter Verified v. Election Sys. & Software, Inc., the U.S. District Court for the Middle District of Florida quotes 35 USCS §§ 103 and 282:

"[A]n invention cannot be patented if 'the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art . . . .' 35 U.S.C. § 103(a). Patents are presumed to be valid upon issuance, 35 U.S.C. § 282, and included within that presumption of validity is a presumption of non-obviousness, Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 714 (Fed. Cir. 1984). Thus, a party seeking to invalidate a patent based on obviousness bears the burden of proving 'by clear and convincing evidence that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable expectation of success in doing so.' Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007)." (Voter Verified v. Election Sys. & Software, Inc., 2011 U.S. Dist. LEXIS 6956 (M.D. Fla. Jan. 24, 2011) at 20.)

The Court then outlined the "underlying factual inquiries . . . (1) the scope and content of the prior art; (2) differences between the claims and the prior art; (3) the level of ordinary skill in the pertinent art; and (4) secondary considerations such as commercial success and satisfaction of a long felt need. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966)." (Ibid.)

In Cross Med. Prods. v. Medtronic Sofamor Danek, Inc., the U.S. Court of Appeals for the Federal Circuit tackled the problem of determining what constitutes "ordinary skill" in regards to the obviousness of an invention that combined existing elements in an new, useful way. The product at issue was a device used to stabilize the lower spine. Surgeons found the existing version of the product adequate but complained that it was too difficult to use. The subsequent patented version implemented design changes that were suggested by the surgeons. (Cross Med. Prods. v. Medtronic Sofamor Danek, Inc. (2005) 424 F.3d 1293, 1322.)

According to the Court, "[a]n invention may be a combination of old elements disclosed in multiple prior art references. [citing In re Kotzab (2000) 217 F.3d 1365, 1369] In determining whether a combination of old elements is non-obvious, the court must assess whether, in fact, an artisan of ordinary skill in the art at the time of invention, with no knowledge of the claimed invention, would have some motivation to combine the teachings of one reference with the teachings of another reference. See In re Fulton, 391 F.3d 1195, 1200-02 (Fed. Cir. 2004). Motivation to combine references 'may come explicitly from statements in the prior art, the knowledge of one of ordinary skill in the art, or, in some cases the nature of the problem to be solved.' Kotzab, 217 F.3d at 1370. 'The test for an implicit teaching is what the combined references, knowledge of one of ordinary skill in the art, and the nature of the problem to be solved as a whole would have suggested to those of ordinary skill in the art.' Id." (Cross Med. Prods. v. Medtronic Sofamor Danek, Inc. (2005) 424 F.3d 1293, 1321-22.)

Once again, the "ordinary skill" test for nonobviousness is nearly impossible to apply in the software-development context with any consistency and predictability. Likewise, nearly all software is the product of a combination of existing code in a useful way. Lastly, if you were to ask a programmer what constitutes "ordinary skill" in the programming arts, you would probably get an earful on the shortcomings of other programmers and the rarity of true innovation -- patent-worthy or otherwise -- in the software industry.

e. 35 U.S. Code § 112: Specification