Ordinary Creativity in Patent Law: The Artist within the Scientist

Abstract

Patent law is intended to promote the creativity of scientists and engi-neers. The system recognizes that the work of the individual is the engine that ultimately increases the state of scientific knowledge. As economist Paul Romer recognized, “Technological advance comes from things that people do.” Furthering creativity represents the constitutional, theoretical and doc-trinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and pro-poses how patent law can formulate a legal conception of creativity.

To undertake this inquiry, this work focuses on the U.S. Supreme Court’s KSR International Co. v. Teleflex Inc. decision. When considering the appropriate standard for assessing nonobviousness under 35 U.S.C. § 103, the KSR Court used the phrase “ordinary creativity” to refer to the capabilities of the person of ordinary skill, a standard roughly analogous to tort law’s reasonable person. KSR’s choice of this phrase is intriguing, par-ticularly because creativity as a human attribute is notoriously difficult to define. In order to provide a theoretical background that leads to an under-standing of KSR’s ordinary creativity standard, this work explores creativity from an interdisciplinary perspective. Further, the work proposes guidelines that may be used to implement KSR’s flexible standard. More broadly, this work proposes that these interdisciplinary sources can be useful to the field’s understanding of the process of invention.

Keywords: Patent, Nonobviousness, Creativity, Intellectual Property, Invention, Conception, Intlellectual Property