Author(s)
Timothy R. Holbrook and
Mark Janis
Source
Minnesota Law Review, Vol. 97, No. 1, pp. 72-131, 2012
Summary
The authors develop a basic matrix to analyze the problems inherent in patent law’s communication with its audience.
Policy Relevance
Patent law tends to overestimate the actual amount of communication of its rules to its target audience, thus the true degree of public notice regarding patent rules is lower than patent law assumes. Looking at patent law through the matrix of proximity and complexity can help identify such deficiencies.
Main Points
- Patent law must be communicated to be effective. Patent law often assumes there is more communication to its audience than is realistic. More attention should be paid to how the rules are transmitted to the target audience.
- Patent law could promote the useful arts more effectively if it were more realistic in its conception of its audience and if it conceived of more practical intermediaries to bridge the gap between patent law and its audience.
- Heuristics such as the hypothetical “Person Having Ordinary Skill In The Art” (PHOSITA) are an attempt to create greater proximity between the patent law and its target audience.
- The proximity of patent law is a measure of the extent to which formal law communicates directly with its intended audience. The complexity of patent law refers to how much information the rule attempts to convey.
- There is a tradeoff between proximity and complexity. Rules that try to convey complex information with low proximity have a lower likelihood of being successful and likely are not received as intended.
- Currently in patent law inventors are not proximal to the rules—they interact with the rules only through layers of intermediaries.
- Patent scope doctrines that could benefit from redesigned proximity or complexity, or both, include: Claim Construction Rules, Prosecution History Estoppel, the Disclosure Dedication Rule, and Divided Infringement Claims.
- The proximity-complexity tradeoff is also relevant as it relates to certain patent bars, particularly: the On-Sale bar, the Public Use bar, and the Experimental Use bar.
- Simply focusing on reducing patent rule complexity is unlikely to help increase public notice of patent rules unless the proximity of the target audience to the rule is also taken into account.