Posted: 24 May 2013 Last revised: 28 Nov 2014
Date Written: May 22, 2013
Francis Bacon stressed centuries ago that innovation is inevitably influenced by mental and social constraints. It is only by exposing and understanding these constraints, Bacon argued, that society can fully benefit from scientific innovation. But while historians and sociologists of science and technology have long appreciated how institutional norms shape the course, pace, and content of innovation, legal scholarship on patent law has all but ignored this insight. In this Article, I seek to complement traditional law and economic analyses of patent law by developing a sociological and historical approach that focuses in concrete detail on the ways in which scientific knowledge, and thus innovation, is made, maintained, and modified.
Rather than focus on individuals and their cognitive abilities as the drivers of innovation, a sociological view of innovation emphasizes the central role of communities of practice in which individual inventors are embedded. Interactions across and within communities of practice influence the speed of innovation. Innovative delay often arises when vested community interests in particular research tools, approaches, and questions block the migration of tools and ideas across communities. Within each community, reliance on interpersonal relationships of trust and authority to determine which research programs and methodologies are legitimate and interesting can also lead to innovative delay. Similarly, periods of fast innovative activity often have sociological explanations. For example, a particular line of research long ignored may become a “hot” topic of research when backed by a high-status intellectual actor.
This socio-historical approach is responsive to recent Supreme Court patent law jurisprudence, exemplified by KSR v. Teleflex, that directs courts to take a flexible approach to patentability by considering “the circumstances surrounding the origin of the invention.” Understanding why some scientific innovations take a long time to develop or be endorsed by the scientific community provides an opportunity to reshape patent law as a policy lever to mitigate such delays. Conversely, understanding why other types of innovation occur rapidly and spark swift follow-on innovation calls attention to circumstances in which broad patent rights may impose particularly high social costs. By teasing out social factors that influence the pace of innovation, I offer a framework for taking such considerations into account in the design and application of patent law. I also propose specific changes to patent law doctrine that flow from this framework.
Keywords: science, technology, innovation, patent, obviousness, KSR, sociology of science
JEL Classification: K11, O3
Suggested Citation: Suggested Citation
Pedraza-Farina, Laura G., Patent Law and the Sociology of Innovation (May 22, 2013). Wisconsin Law Review, Vol. 2013, No. 3, 2013. Available at SSRN: https://ssrn.com/abstract=2269387