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.