Neuro Patent Law

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

Neuroflux and its free five day brain bootcamp:

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].

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