This is the question that has no definitive answer. The patent office is not supposed to use "impermissible hindsight" which renders almost all inventions obvious. This is the kind of thing that happens when you see an good answer to a problem and think to yourself - "Why didn't I think of that?" That would be an example of impermissible hindsight. Of course getting to the "right" kind of obviousness is the patent office's job. It is difficult to say exactly what is permissible and what is not. The letter of the law is written so that if it would be obvious to one skilled in the art of whatever your invention is - the so-called PHOSITA - (person having ordinary skill in the art) then you are not entitled to a patent. If your invention would be deemed obvious to a person skilled in the field of knowledge related to your invention, then it is not patentable but if would take experimentation, etc. to come up with your solution, then it should be patentable. It is anything but clear and that is the way it is with most things in the law. You have the black letter and then you have to decide the individual case based on the particulars. Since most patents are for improvements over things that already exist (very few patents are for brand new areas of invention) the answer to the question of what is obvious is a tough problem and one that no patent professional can answer with absolute surety.
Answered on May 13th, 2015 at 4:42 PM