Ordinary Creativity in Patent Law: The Artist within the Scientist

Abstract

Patent law is intended to promote the creativity of scientists and engineers. The system recognizes that the work of the individual is the engine that ultimately increases the state ofscientific knowledge. As economist Paul Romer recognized, Technological advance comes from things that people do. Furthering creativity represents the constitutional, theoretical and doctrinal 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 proposes how patent law can formulate a legal conception of creativity. To undertake this inquiry, this work focuses on the U.S. Supreme Court\u27s 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\u27s reasonable person. KSR\u27s choice of this phrase is intriguing, particularly because creativity as a human attribute is notoriously difficult to define. In order to provide a theoretical background that leads to an understanding of KSR\u27s ordinary creativity standard, this work explores creativity from an interdisciplinary perspective. Further, the work proposes guidelines that may be used to implement KSR\u27s flexible standard. More broadly, this work proposes that these interdisciplinary sources can be useful to the field\u27s understanding of the process of inventio