A Network Theory of Patentability: Towards an Empirical Measure of Patent Nonobviousness

Date: March 29, 2018 (Thursday)
Time: 12pm – 1pm
Venue: Room 723, 7/F Cheng Yu Tung Tower, the University of Hong Kong

Co-author of this paper: Dr. Ryan Whalen, Assistant Professor, Department of Law, HKU

Speaker: Dr. Laura Pedraza-Fariña (Associate Professor, Northwestern University School of Law)

All are welcome!  

Abstract: The nonobviousness inquiry is one of the most notoriously complex and contingent of all legal questions. The challenges faced by those tasked with determining an invention’s nonobviousness include understanding unfamiliar technologies and seeing the world from the perspective of an objective inventor, all while avoiding issues of hindsight bias.

This research project attempts to simplify the obviousness inquiry by proposing an empirically-grounded network theory of patentability that integrates the dominant competing theoretical approaches to obviousness. We use this network theory of patentability to motivate the definition of a “network measure of nonobviousness” and subsequently demonstrate our measure by using the prior art record to approximate “technological space.” We are then able to situate claimed inventions within technological space and measure the preceding inventive activity in the area, providing insight into how likely it is that the inventions are obvious.

Our network measure of nonobviousness offers valuable objective insight into the obviousness analysis that is based on the empirical patenting record and robust to hindsight bias. It shows promise as an aide for patent application assessment, patent portfolio management, and patent dispute resolution.

From a methodological perspective, this project is the first to provide clear doctrinal rules inspired by a network science approach to information analysis.

About the speaker: Laura Pedraza Fariña joined the Northwestern faculty in 2013 as an Assistant Professor of Law. She is also a faculty affiliate of the Science in Human Culture Program at Northwestern. She received her J.D. from Harvard Law School and her Ph.D. in genetics from Yale University. Her research interests include intellectual property, patent law, and international organizations. Her scholarship on intellectual property law uses the methodology of history and sociology of science and technology to analyze and inform the design of patent law. Her current projects include an analysis of the implications of sociological studies on tacit scientific knowledge for the disclosure theory of patent law, and a study of how the specialized court structure of patent law influences the content of patent decisions.