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Lately, my pleasure reading has gone in the direction of books about neuroplasticity. It has prompted me to wonder how brain imaging might be used in the practice of patent law. For example, could evidence in the form of fMRI scans on a sampling of PHOSITA’s be introduced as secondary indicia of non-obviousness? Is there an area(s) of the brain that could be identified as becoming active when hindsight is invoked? Could fMRI scans be used on patent examiners/judges to better assess patent eligibility? There are a myriad of other issues that one might use neuroscience and brain analysis to weed out the biases that are so prevalent in patent law. Pretty far-fetched, I know; but, fun to think about.

This 2019 article discusses the role that neuroscience scholarship has recently played in the criminal courts: [link].

Some good books if you want to explore neuroscience further are:

The Brain’s Way of Healing by Norman Doidge.

The Brain That Changes Itself by Norman Doidge.

The Brain by David Eagleman.

Train Your Mind Change Your Brain by Sharon Begley.

Incognito — The Secret Lives of the Brain by David Eagleman.

Soft-Wired by Michael Merzenich.

Some interesting brain health programs are:

BrainHQ at www.brainhq.com

Neuroflux and its free five day brain bootcamp: https://www.neuroflux.io

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Update 12/23/2021:

I was watching the Strafford CLE Design Patent Litigation: Increasing the Probability of Success in Infringement Outcomes and was intrigued to learn of a new survey technique being used in design patent litigation. As you know, the test for design patent infringement can be very subjective. The new technique described in this CLE and dubbed the Empirical Ordinary Observer Test (EOOT) attempts to remove some of that subjectivity using neuroscience methods. For example, at least eye tracking is used, although there was reference to micro-facial expressions, EEG, EMG, and Cognitive Modeling and Workload Analysis. It’s an excellent CLE, if you are interested.

Some of the other references mentioned in the CLE are:

Individual Differences in the Centrality of Visual Product Aesthetics by Bloch et al. (2003) [Link];

Development and initial validation of an empirical ordinary observer test for design patent infringement by Mauro et al. (2020) [Link];

Why the Future of Design Patent Protections Will Rely on Modern Neuroscience, Not Constitutional and Legal Reversionism, Berkeley Technology Law Journal (November 2021);

Research Handbook on Design Law, Chapter 16: How Different is Different? Modern Neuroscience and its Impact on Design Law by Mauro et al., Edward Elgar Publishing (2021) [Link]; and

Reference Manual on Scientific Evidence, Federal Judicial Center (2011) [Link].

I was trying to figure out if the phrasing of the questions during the recent Supreme Court oral argument of Minerva v. Hologic signaled any outcome in the US v. Arthrex case. For example, would the justices refer to the role of the PTAB judges in eliminating bad patents? Would there be references to IPR’s or post-grant review? The transcript shows that there were not that many references to the PTAB. And, when there were, it was by the advocates — not by the justices. Justice Gorsuch, however, did reference IPR’s. For example, he stated: “And now we have the Patent Office itself refusing to apply patent estoppel in its own proceedings, for — in IPR proceedings. So the only place left that this doctrine seems to apply is in court.” Later he stated: “Unless they get challenged in the Patent Office in the IPR, which they could be. And then —.” At the end of the day, I don’t think the oral argument in Minerva suggests how the Court is deciding Arthrex one way or the other.

I did think one of Chief Justice Robert’s questions was intriguing:

CHIEF JUSTICE ROBERTS: Thank you, Mr. Hochman. I want to focus a little bit on your — your policy argument that getting rid of assignor estoppel would help, you know, get rid — rid of bad patents in encouraging inventors to — to challenge particular claims. But I thought strong patents was the way we encourage invention and that assignor estoppel helped ensure the strength and stability of — of those patents. How do you sort out those competing policy arguments?

The Supreme Court is scheduled to hear oral argument in Minerva Surgical, Inc. v. Hologic, Inc. on Wednesday April 21st at 9AM Mountain time. The case addresses assignor estoppel — an issue the Supreme Court clearly deems more important at this time than patent eligibility. You can review the briefs on the SCOTUSBLOG at this [LINK].

You should be able to audio stream below once the C-SPAN presentation goes live:

The Federal Circuit is going live with broadcasts to the public of its telephonic oral arguments solely via YouTube tomorrow. Conspiracy theorists will probably be disgruntled since YouTube is owned by Google. That does raise an interesting question, though — did the Federal Circuit have to go through a government approval process or security process before selecting YouTube over the court’s previous livestream system?

Unfortunately, it looks like the YouTube comments section will be turned off during the live stream of each oral argument. That would be fun to have the opportunity to suggest questions that the judges could ask during the oral arguments or to cast your own “vote” on an issue at the conclusion of the oral argument. Maybe some enterprising blogger will set up a parallel commenting system to perform just such a service.