The Psychology of Patent Law: Overcoming Invention Barriers With Tailored Incentives
Richard Gruner
Patent law is founded on the belief that inventions departing significantly from present technological understanding are difficult to produce and deserve an extra boost and incentive to generate them at socially valuable levels. Recent psychology research supports this policy basis for patent law. Human brains commit systematic errors in predicting the future, making it difficult not only to foresee the actions of others but even to understand what will make ourselves happy in the future. In the particular context of inventive activity, the same systematic weaknesses of humans make it hard to foresee how non-obvious changes in existing technology will work, how the functionality achieved by those non-obvious changes will fit into practical contexts, and how new and non-obvious technological solutions to practical problems will be translated into commercially viable products and received in consumer marketplaces. Because our potential inventors cannot foresee these things, acts aimed at producing patentable advances are frequently and systematically doomed to failure by the weaknesses of the human brain.
Obviously, not all such inventive efforts are doomed to failure. But we should have a healthy respect for the rarity of these efforts and construct patent laws accordingly. The rarity of actions leading to patentable advances has two implications for shaping patent laws. First, those few individuals who can overcome the generally prevailing limitations on human insights about the future functionality and societal impacts of non-obvious new technologies should receive exceptional backing and rewards for their efforts. Second, in those instances where (for whatever reason) parties stumble onto new and previously non-obvious ways of accomplishing practical tasks, the parties should be given strong incentives to disclose and popularize these solutions because concerted efforts to rediscover them are unlikely to be successful at later points. For these reasons, patent laws should be crafted to both generate more non-obvious advances and to encourage more disclosures of these advances. Patent incentives can boost the numbers of distinctive advances and speed technological progress by adding substantial drivers and backing to the efforts of inventors with rare abilities to design and produce non-obvious advances. Patent laws can also bring more distinctive advances to public attention and use by providing strong incentives for accidental discoverers to disclose their findings.
This article addresses three topics. First, it summarizes recent advances in psychology research that identify several types of systematic errors made by most persons in projecting and interpreting future events. Second, it describes how these systematic errors play out in the production of new, non-obvious inventions of the sort that are the focus of patent laws. Third, it considers how patent law standards – particularly standards governing patentable subject matter and non-obviousness tests – should be tailored to have the maximum impact in offsetting and overcoming the systematic errors that potential inventors make in pursuing the types of non-obvious technical advances that the patent system seeks.