Foresight Bias in Patent Law

ABSTRACT Much of patent reform has focused on efforts to make it harder to obtain and enforce low-quality patents. The most straightforward way to achieve this goal is to raise the substantive standards of patentability. What is often ignored in discussions about raising patentability standards is that high-quality inventions can slip through the cracks. What is more troubling is that sometimes this happens because of bias. This Article draws attention to foresight bias, which occurs when a decision-maker lets over-pessimism and an oversimplified view of the future influence the patentability determination. Foresight bias leads to a patent denial regardless of the invention's technical merit. Particularly susceptible are inventions emerging from "unpredictable" fields like chemistry and biotechnology--things like chemical compounds and DNA fragments. If the invention's principal purpose is to serve as a "building block" for something else, it is unpatentable. The fear is that a patent could create a monopoly of knowledge and impede future research. Empirical studies, however, suggest that these fears have largely not materialized. More importantly, the patent denial costs the inventor, society, and the patent system. This Article offers a solution to this problem. It proposes a new paradigm that gauges the patentability of building block inventions in unpredictable fields objectively without reliance on the utility requirement--the principal conduit for foresight bias. Its implementation will promote disclosure, foster more creative activity, reduce wasteful duplicative research efforts, and promote technological progress--all important objectives of the patent system. Eliminating the bias will also reconnect the patent system to many of the technical communities that it serves. INTRODUCTION Patent reform has been the subject of much scholarship and debate over the past decade. (1) Calls for reform have been prompted by concerns that the U.S. Patent and Trademark Office (Patent Office) routinely grants poor-quality patents (2) and that such patents are too easy to obtain and enforce. (3) Congress took a step toward addressing these concerns through its recent passage of the America Invents Act. (4) Much attention in the patent reform debate has focused on the substantive standards for patentability. (5) Many commentators have long argued that the standards are too low, thereby diminishing their gatekeeping function. (6) This argument deserves attention because adjusting these standards is considered the principal tool for modulating the scope, number, and quality of issued patents. (7) Indeed, tightening the standards of patentability has been a major goal of judicial efforts at patent reform. (8) Scholars and policymakers all seem to believe that raising the standards could do much to ameliorate many problems afflicting the patent system. (9) For instance, if the standards are sufficiently high, patents would be harder to obtain and easier to invalidate. (10) There is, however, another side to the story. What is often ignored in discussions about raising patentability standards is that meritorious inventions can slip through the cracks. A denial will deprive the inventor of a patent; however, high standards will also reduce the number of applications filed. When this happens, society is deprived of the public disclosure of technical information about the invention that occurs once a patent document publishes. (11) Thus, this paradigm compromises the patent system's primary goal to promote technological progress. (12) Any patentability standard that produces this outcome should give decision-makers considerable pause. What is more troubling is that sometimes this occurs because of bias in the patentability determination. The type of bias most frequently discussed in patent law is hindsight bias--also known as "Monday morning quarterbacking." (13) Hindsight bias is the cognitive limitation which prevents persons from disregarding their knowledge of an outcome in assessing past events. …