Evidentiary Problems of Multidisciplinarity in the Litigation of Business Method Patents
14 Pages Posted: 15 Jan 2013
Date Written: July 26, 2012
It is now widely accepted that judicial decision making is not a neutral exercise in interpretation of established law and consequently decisions, particularly in novel areas, should take account of policy considerations. In this article I use the example of litigation over the patentability of business method to problematize this line of reasoning. Sound policy typically turns on empirical evidence and while there is a significant body of research on the question of whether business method patents promote innovation, such evidence has been introduced only indirectly, though academic articles. This does not allow adequate examination of the reliability of the evidence. Introducing empirical social science evidence directly in litigation faces a number of hurdles which are discussed. Ultimately I argue that it is beyond the institutional competence of the courts to adequately take account of empirical social science evidence on the issue of whether business method patents are good for innovation. While the details of the arguments are specific to the context of business method patents, I suggest that the issue of institutional competence should always be taken into account when considering whether empirical social science evidence should drive judicial decision making.
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