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

Abstract

The past few years have seen an explosion of interest in "network science" in fields from physics to sociology. The nodes and links of networks 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." This Article first introduces network science and argues that it 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 an empirical 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. Our network study finds 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 nonobviousness, 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, complexity, intellectual property

JEL Classification: C45, K00, O31, O34