Ethnography … a “good lantern” for innovation?
Mike Madison points to an interesting conference recap of Grant McCracken’s. Mike also wonders whether I’ll have a comment. Indeed, I do …
The ethnography McCracken discusses takes place for the sake of helping a company (he mentions a few, such as Intel and Miller Brewing) respond better to, provide better for, its customers … and thus, perform better for its shareholders. Madison highlights the following from McCracken:
[Ethnography] turns out to be a good lantern to take with us when we go looking for innovation. Innovation is not usually a really great idea we find fully formed sitting neglected in a corner of the consumer culture. (”Velcro, of course!”) Innovation often depends on a conceptual cunning, that sudden insight that if we look at this problem or product or person in a slightly new light, everything changes. … Innovation comes, that is to say, to those who are capable of changing conceptual frame quickly, often and well. Because it is so good at provoking and then managing messiness, ethnography delivers value here. Indeed, it sometimes seems to me almost as if purpose build for critical parts of the innovation process.
Mike riffs on McCracken, suggesting that we should not be too dismissive of the inventions that arise within an existing frame (rather than from changing frames): “There is innovation within a pattern as well as innovation beyond it; there is gradual change as well as sudden, insightful change.”
What has this to do with patent law’s nonobviousness requirement? More below …
As Mike indicates, the nonobviousness requirement is under pressure … from the Teleflex case and elsewhere. The current “suggestion test,” if applied too rigidly to demand that the prior art contain an explicity suggestion (which seems more common than not), treats the PHOSITA like a hopelessly anticreative moron. I like McCracken’s emphasis on the creative force of shifting your frame, which comports with the cognitive psychology literature on the nature of creativity that I’ve begun to explore, because it makes a positive statement about the nature of the inventive act from a psycological perspective.
My gut tells me that, in patent law, we’ve been laboring without the benefit of cognitive psychology’s insights for far too long. How can we reliably sort the unpatentable obvious inventions (which the PHOSITA will develop naturally, as a matter of course, when confronted with a problem) from the patentable nonobvious inventions (which the PHOSITA will not develop as a matter of course) without an affirmative understanding of the typical, ordinary creativity of which the PHOSITA is capable? It isn’t “no creativity,” we know that; ordinary artisans create new, obvious things every day.
Of course, we can do better than “Joe Miller’s gut says ….” That’s why I, for one, am exploring cognitive psychology’s findings on the nature of ordinary human problem-solving and inventiveness. I don’t know where it will lead. But I’m having fun with it.
Will the cognitive psychology angle you are considering steer clear of or will it run into the “flash of genius” standard long rejected? I realize you’re noting that gradual innovations, rather than a sudden innovation can be nonobviousness, so the “flash” aspect may not be implicated. But if the 103 analysis starts focusing on how someone thinks, are we risking awarding patent rights to only those inventions that rise to some level of a mental stimulant that the judiciary finds sufficient? Isn’t this something rejected by the courts as part of rejecting the “flash of genius” standard for invention. If the 102 and 103 requirements serve merely to protect what is in the public domain so that one may not use a patent to take away from the public subject matter the public should have a right to practice, do we need an obviousness test that bestows patent rights only if something rises to the level of an invention as measured by some level of cognitive state or effort. We might, but then again we might not.
Anyway, I’m look forward to seeing more comments as you learn more about cognitive psychology and its possible applicability to obviousness analysis.
Comment by Bob Matthews — May 12, 2006 @ 8:36 am
Bob,
Your question about the link to the discredited “flash of genius” test is a great one, and I think the issue is quite complex.
Since Hotchkiss (1851), the law has distinguished between the inventions the ordinary artisan will make as a matter of course (not patentable) and those which are beyond the ordinary artisan’s grasp (patentable). Graham (1966) picks up on Hotchkiss explicitly, as did the drafters of the 1952 Act. What’s left of the “flash of creative genius” idea, as it culminated in Cuno Eng’g (1941)?
I’m not sure. But, to riff on the old saw about paranoiacs, just because a statement about patent law is from Justice Douglas, that doesn’t mean it’s wrong.
The “flash of genius” test is a terrible idea if we use it to ask how, as a subjective, historical matter, a particular patent applicant came up with her invention. At the same time, I think it’s a good idea to try to give positive content to the notion that is the opposite of “the obvious.” We’ve done a poor job of that so far, calling it merely “the nonobvious.” From this perspective, the second biggest problem with “flash of genius” is that it’s too crude and basic an effort. It originated in the mid-1800s, and we never fleshed it out with the aid of psychology or other ways of thinking in positive (not merely negative) terms about what separates the routine acts of creativity (which, as you say, are really already part of the public domain) from the extraordinary acts of creativity that are, as Jefferson said, worth the embarassment of patent protection.
Comment by Joe — May 12, 2006 @ 8:59 am