Patent Law

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Nonobviousness,Situationism, and theBanality of
Invention
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To get us started

• There is nothing rare about invention. Each and
  every one of us makes inventions all the time.
  Little problems in our daily lives give rise to
  little inventions to solve them. Judge Giles
  Rich
• Rather than attributing behaviors to the
  situations that provoked them, we tend to
  attribute behaviors to the enduring traits or
  abilities of the person who had performed them.
  Prof. Ziva Kunda

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Nonobviousness

• 103(a) Retrospective
• would have been obvious
• Vulnerable to the hindsight bias
• Loom Co. v. Higgins, 105 U.S. 580, 591 (1881)
• Now that it has succeeded, it may seem very
  plain to any one that he could have done it as
  well. This is often the case with inventions of
  the greatest merit.

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Nonobviousness

• Fundamentally a causal inquiry
• Forced choice Inventor, or Situation ?
• a common metaphor that construes the human
  skin as a special boundary that separates one set
  of causal force from another. Gilbert
  Malone (1995)
• In social psychology Attribution Theory
• Flourishing since the late 1950s

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Attribution Theory

• Premise people are intuitive scientists
• analysis of variance approach
• Harold Kelley, Causual Attribution (1973)
• Covariation Principle
• An effect is attributed to the one of its
  possible causes with which, over time, it
  covaries.
• Discounting Principle
• The role of a given cause in producing a given
  effect is discounted if other plausible causes
  are also present.

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Fundamental Attribution Error

• Dispositionism Ross Nisbett (1991)
• FAE ( also called correspondence bias )
• inflated belief in the importance of personality
  traits and dispositions
• failure to recognize the importance of
  situational factors in affective behavior
• Situationism
• Situational factors often overwhelm disposition

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Quiz Game Experiment
Raters Role Questioners G.I. Contestants G.I.
Questioner 53.5 50.6
Contestant 66.8 41.3
Observer 82.9 48.9
( 50 average Stanford student) ( 50 average Stanford student) ( 50 average Stanford student)
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Food Drive - Predicted
How many will give? Most Likely Least Likely
Facilitated 83 17
Not Facilitated 80 16
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Food Drive - Observed
How many gave? Most Likely Least Likely
Facilitated 42 25
Not Facilitated 8 0
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Situationism in Law ?

• IP
• Brad Simon, IP TK, 20 Berk. Tech. L.J. 1613
• Greg Mandel, Hindsight Bias studies re patents
• General
• Jon Hanson David Yosifon
• The Situation, 152 U. Pa. L. Rev. 129 (2003)
• Situational Character, 93 Geo. L.J. 1 (2004)

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Would it have been obvious?

• Forced choice
• Any ordinary artisan, at that time in that art,
  would have solved that problem that way.
• At that time in that art, this inventor went past
  conventional wisdom to solve the problem.
• FAE
• At the heart of the IP model is the concept of
  the romantic author or genius inventor.
  Brad Simon (2005)

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How does it all add up?

• Hindsight bias
• Discounts the actors inventive contribution
• Anyone could have done that.
• Fundamental attribution error
• Discounts situational forces in favor of inventor
• She is really a gifted inventor.
• What if HB effect cancels out FAE effect?
• Do situational forces affect problem solving?

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Possible Errors
Held to be Held to be
Obvious Nonobvious
Would have been Obvious ? ? (FAE)
Would have been Nonobvious ? (HB) ?
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Vise, Google Story (2005)

• p. 94
• Beach volleyball, foosball, roller hockey,
  scooter races, palm trees, bean bag chairs, even
  dogsit was all part of making work fun and
  fostering a creative, playful environment where
  Googles employees would want to spend their
  waking hours.
• p. 131
• The 20 rule was a way of encouraging innovation
  and maintaining the right culture .

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Attribution
Situation Perception
Behavioral Expectation
Behavior Perception
Daniel T. Gilbert Patrick S. Malone, The
Correspondence Bias, 117 Psych. Bull. 21 (1995)