In patent cases, the term “hindsight bias” refers to fact-finders’ tendency to use their knowledge of the invention at issue in their analysis of whether that invention would have been obvious. This error occurs when fact-finders ignore the rule that obviousness of a claimed invention must be evaluated at the time of patent filing rather that at the time of litigation. Professor Sean Seymore’s latest article, Foresight Bias in Patent Law, deals with an error that implicates the future rather than the past. Seymore is concerned with the utility requirement, which denies patents on chemical compounds that lack a demonstrated consumer end use, such as a therapeutic use, and on methods of making such compounds. Foresight Bias builds on Seymore’s earlier article, Making Patents Useful, which criticizes the utility requirement for being too subjective and calls for its elimination. Seymore’s work may be contrasted to that of Professor Michael Risch, who sees a greater role for the utility requirement (see also here).
Seymore criticizes courts for denying patents on microscale building blocks, like chemical intermediates and gene fragments, but not on macroscale building blocks, like bricks. He argues that the two types of building blocks are similar in that they facilitate further development and are thus useful to the artisans in the field—chemists and masons, respectively. Although Seymore does not completely reject the possibility that patent law can justifiably develop technology-specific standards and acknowledges that chemistry and biotechnology are fairly characterized as “unpredictable” fields, he argues that “courts should not craft technology-specific rules based on speculation about the potential negative consequences of granting a patent.” In Seymore’s view, this is the crux of the problem: Patents on chemical intermediates have been wrongly denied based on “hypothesized negative effects of upstream patents on downstream research” that have not been empirically proven and, for some types of patents, possibly disproven.
The views, opinions and positions expressed by these authors and blogs are theirs and do not necessarily represent that of the Bioethics Research Library and Kennedy Institute of Ethics or Georgetown University.