Behavioral Claim Construction

Abstract

Existing proposals for enhancing predictability in patent claim interpretation focus primarily on the process of adjudication and doctrinal issues, while rarely delving into the underlying psychological and environmental factors that might influence different readers to interpret the same claim very differently. Drawing on lessons from behavioral economics and cognitive psychology, this Article undertakes the first detailed exploration of the behavioral elements — such as cognitive biases, priors, and situational factors — that may affect how a given reader interprets a claim. To mitigate the influence of behavioral elements in claim construction, this Article proposes the extension of means-plus-function analysis to all claim terms. Means-plus-function analysis may be more resistant to behavioral influences than the current interpretive regime for non-means-plus-function claims, because it limits the realm of plausibility for answers molded through motivated reasoning, while also accommodating certain cognitive biases that may help yield a construction that the vast majority of the readers of a patent claim are likely to reach naturally as a “cognitive default.”

Keywords: patent, claim construction, interpretation, litigation, cognitive bias, heuristics, psychology, behavioral economics