Are advances through "open innovation" incremental and obvious?

One post-KSR theme that is not being explored in great detail comes from IBM's David Kappos: "What they're [the Supreme Court] starting to put together here is a model for a 21st-century patent system. Closed proprietary innovation remains important, but the court seems to be saying that patent law can also accommodate 21st century models that are more open, more collaborative." One wonders if Kappos means that the more open, more collaborative efforts are "more obvious," and thus NOT patentable. Is Kappos saying that the "more open" efforts are in the realm of "obvious to try" incremental advances which are outside the scope of patentability?

IPBiz had previously noted:

Murphy at InformationWeek has some text linking Kappos/open innovation/patent reform, echoing text that appeared in the Wall Street Journal:

And in my own conversation with David Kappos, IBM's lead IP attorney, he noted that the IT industry is different because it doesn't have a well-defined language that provides the basis for discussing new innovations. Other sciences have the language of chemical composition, for example: "You can understand exactly on an atomic level what's being described." Compare that, he says, with the logical constructs of software design—programming layers, objects, macros, etc.—and there's no single, base vocabulary in the IT industry, which makes it much harder for a patent examiner to research a claim and compare prior art.
The Supreme Court is working to update the patent system to changes in how innovation happens—where it's more often crossing lines of scientific disciplines, companies, or national borders. IT is one of the lead examples of that, and therefore is likely to be among those most affected by any changes to the system. "The world is really moving fast toward collaborative innovation in ways people haven't before," Kappos says. "The Internet is the prime motivator for that. The patent system has a long way to go to catch up to that."

LBE had posted on the scotus blog on May 1, 2007:

A more interesting angle explored by Bravin involved the impact of the KSR decision on open innovation models (for example, see Henry Chesbrough on "open innovation.") Bravin quoted David Kappos of IBM: "What they're starting to put together here is a model for a 21st-century patent system. Closed proprietary innovation remains important, but the court seems to be saying that patent law can also accommodate 21st century models that are more open, more collaborative."

In a different article in InformationWeek [Patents On Their Minds; The Supreme Court is remolding patent law to today's business realities. As of last week, that means making patents harder to get and defend, May 7, page 25] Chris Murphy wrote:

The cases show the Supreme Court justices taking to heart public
criticism of the U.S. patent system, and the attention's likely to continue, says
Harold Wegner, a patent attorney with Foley & Lardner. The court is working to
update the system, says IBM's Kappos, to accommodate forces such as
globalization, greater collaboration, open source innovation, and changing business
models. "The court is realizing it's not just about the patents, it's about how
people work," he says. "The court realizes there's more incremental innovation
occurring all the time."

There's also patent reform legislation pending in the House and
Senate. Many independent inventors and small companies oppose that legislation,
saying it would make it easier for big companies-IBM has received the largest
number of patents, by far, for 13 straight years-to use their deep pockets to
bully them out of the process. Kappos says IBM's starting a wiki this week,
calling it an Innovator's Forum, to give small companies a platform on patent reform.

The KSR decision's real impact is yet to be determined. Wegner
considers it a "very moderate" opinion, making it a bit harder to get a patent and
making it a bit easier for a jury to invalidate a patent. Thomas Woolston, the CEO
of MercExchange, says he isn't worried. While the Supreme Court broadened
the tests to prove a patent's nonobviousness, courts still must rely on evidence,
not a "feeling" that something's obvious. That's all inventors want, he says.
"All inventions are obvious in hindsight," Woolston says. Kappos likes the
KSR decision because it will make it easier to distinguish the good patents
from the bad ones.

So, is this a ruling that big and small inventors-two opposing
camps on patent reforms-both can like? It seems so. That's the one thing
everyone agrees on-that we need better, stronger patents. Because every inventor thinks his creation bears the mark of originality and genius.

IPBiz notes that Murphy did NOT discuss the impact of the creation of an "obvious to try" standard with the death of In re Deuel. Murphy did not mention the happiness expressed in India over KSR v. Teleflex. One wonders if Woolston's sentiments are the same as those of PIA? Is pharma going to happy if all "chiral switch" (enantiomeric) drugs are deemed "obvious to try"?