If anyone is looking for an article to write, I think a very good topic would be a survey of the psychological research (psychology research??) on hindsight bias. Moreover, a discussion of how the psychological research on hindsight has been applied in other legal settings would be useful. I suspect the bulk of the research focuses on how witnesses to accidents remember or misremember the details of an accident. But, it would still be interesting to see what that research teaches us. Hindsight is bandied about quite often when arguing about obviousness; but, isn’t it time to update our understanding of the principles of hindsight so that we can try to eliminate hindsight bias in the minds of those examining applications . . . as well as those adjudicating patents? I don’t ever remember reading a Federal Circuit or CCPA decision that cites a scientific journal on the factors that identify or suggest a hindsight bias.
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Update 1/9/21:
Many thanks to Professor Karshtedt of GW Law for pointing me in the direction of some great resources on this topic. First, in In re Cyclobenzaprine Hydrochloride, 676 F.3d 1063 (Fed. Cir. 2012), the Federal Circuit points to some journal articles on hindsight bias, including a recent law review article by Professor Gregory Mandel [Link]:
Finally, not only is Stratoflex the law, it is sound in requiring that a fact finder consider the objective evidence before reaching an obviousness determination. The objective considerations, when considered with the balance of the obviousness evidence in the record, guard as a check against hindsight bias. Graham, 383 U.S. at 36, 86 S.Ct. 684 (quoting Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406, 412 (6th Cir.1964)). In Graham, the Court recognized the danger of hindsight bias and the ameliorative effect that the objective considerations might offer. In discussing the utility of the objective considerations, the Court cited a law review note published after the nonobviousness requirement was enacted in the 1952 Patent Act. Id. at 18, 86 S.Ct. 684 (citing Richard L. Robbins, Subtests of “Nonobviousness”: A Nontechnical Approach to Patent Validity, 112 U. Pa. L.Rev. 1169 (1964) (“Robbins”)). In that note, the author argued that the instruments of decision-making applied in patent cases at the time were inadequate and allowed judges to rely on “judicial hunches,” thereby deciding cases on extralegal grounds. Robbins, 112 U. Pa. L.Rev. at 1170 & n.11 (citing Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in Judicial Decisions, 14 Cornell L.Q. 274, 278 (1929)). Such “judicial hunches” are encouraged by hindsight bias. As one commentator recently observed, “decision-makers unconsciously let knowledge of the invention bias their conclusion concerning whether the invention was obvious in the first instance.” Gregory N. Mandel, Patently Non-Obvious: Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational, 67 Ohio St. L.J. 1391, 1393 (2006). In other words, knowing that the inventor succeeded in making the patented invention, a fact finder might develop a hunch that the claimed invention was obvious, and then construct a selective version of the facts that confirms that hunch. This is precisely why the Supreme Court explained that objective considerations might prevent a fact finder from falling into such a trap, observing that objective considerations might serve to “resist the temptation to read into the prior art the teachings of the invention in issue.” 383 U.S. at 36, 86 S.Ct. 684.[6] And, it is precisely why fact finders must withhold judgment on an obviousness challenge until it considers all relevant evidence, including that relating to the objective considerations.
In re Cyclobenzaprine Hydrochloride, 676 F.3d 1063, 1079 (Fed. Cir. 2012)
Second, the Fifth Circuit even more recently noted some research in regard to hindsight in the case of Lisa M. v. LEANDER INDEPENDENT SCHOOL DIST., 924 F.3d 205 (5th Cir. 2019):
While judicial review unavoidably looks backward, our task is to assess eligibility with the information available to the ARD committee at the time of its decision. An erroneous conclusion that a student is ineligible for special education does not somehow become acceptable because a student subsequently succeeds. Nor does a proper finding that a student is ineligible become erroneous because the student later struggles. Subsequent events do not determine ex ante reasonableness in the eligibility context.
We are not alone in this approach. The Ninth Circuit has held that review of a school district’s eligibility determination should be assessed “at the time of the child’s evaluation and not from the perspective of a later time with the benefit of hindsight.” L.J. by & through Hudson v. Pittsburg Unified Sch. Dist., 850 F.3d 996, 1004 (9th Cir. 2017). As L.J. put it, “We judge the eligibility decision on the basis of whether it took the relevant information into account, not on whether or not it worked.” Id.
Our sister circuits are split on whether courts can consider hindsight evidence in a different context—when assessing the appropriateness of an IEP. Compare R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 187 (2d Cir. 2012) (disallowing use of “evidence that [a] child did not make progress under the IEP in order to show that [the IEP] was deficient from the outset”); with M.S. ex rel. Simchick v. Fairfax County Sch. Board, 553 F.3d 315, 327 (4th Cir. 2009) (“[W]e have concluded that, in some situations, evidence of actual progress may be relevant to a determination of whether a challenged IEP was reasonably calculated to confer some educational benefit.”); see also Dennis Fan, No IDEA What the Future Holds: The Retrospective Evidence Dilemma, 114 Colum. L. Rev. 1503 (2014) (describing various circuit positions); Maggie Wittlin, Hindsight Evidence, 116 Colum. L. Rev. 1323, 1386-88 (2016) (same).
Lisa M. v. LEANDER INDEPENDENT SCHOOL DIST., 924 F.3d 205, 214 (5th Cir. 2019).
The link to the article by Professor Maggie Wittlin, including a discussion of debiasing, is available [here].