Law and the Science of Networks: An Overview and an Application to the 'Patent Explosion'

Abstract

The network may be the metaphor of the present era. A network, consisting of nodes and links, may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights - or another of a virtually limitless variety of systems of connected things. The past few years have seen an explosion of interest in network science, which seeks to move beyond metaphor to analysis in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the difficulty of predicting collective behavior from individual interactions. This Article seeks first to describe how network science can provide new conceptual and empirical approaches to legal questions because of its focus on analyzing the effects of patterns of relationships on collective behavior.

The Article then illustrates the network approach by describing a study of the network created by patents and the citations between them. Burgeoning patenting has raised concerns about patent quality, reflected in proposed legislation and in renewed Supreme Court attention to patent law. The network approach allows us to get behind the increasing numbers and investigate the patterns of relationships between patented technologies. We can then distinguish between faster technological progress, increasing breadth of patented technologies, and a lower patentability standard as possible explanations for increased patenting. We find that, since the late 1980s, the disparity in likelihood of citation between the most citable and least citable patents has grown, suggesting that the least citable patents may represent increasingly trivial inventions. One possible explanation of this increasing stratification is increasing reliance by the Federal Circuit Court of Appeals on the widely criticized motivation or suggestion to combine test for non-obviousness, which is at issue in the case of KSR v. Teleflex, currently pending at the Supreme Court. We also discuss how network science may be employed to address other issues of patent law.

Keywords: network, patent, intellectual property, complexity, obviousness