Monthly Archives: March 2018

What we are seeing today is actually the second renaissance of indie bookselling, not the first

30 March 2018

From veteran publishing consultant Mike Shatzkin:

Publishing and digital change consultant Bill Rosenblatt — always worth paying attention to — pointed his contacts last week to a podcast from NPR celebrating the current renaissance of independent bookstores. The history reported as part of what was really the celebration of very recent events is useful to ponder, even if it was sometimes a bit confused about the timing of mall stores and superstores and their impact on indies. But its memory wasn’t long enough to recall a critical development that is essential to understanding book retailing over the past half-century and what makes it possible to be a successful  retailer of books today. And it elides the fact that indie bookstores have risen before, several decades ago.

The story the NPR report didn’t tell contains the kernal of a totally underappreciated fact of the book business. The first serious harnessing of the power of modern computing to improve the book supply ecosystem was by Ingram in the early 1970s. Ingram’s innovations over the past two decades, in what could be called the Amazon era, are critical elements of the modern book business infrastructure. Lightning’s print-on-demand capability and “third party fulfillment”, by which Ingram can turn any entity with a web address into an Internet bookseller, are the industry’s counterbalance to Amazon’s growth.

. . . .

The central challenge of book retailing has always been to use the store’s limited shelf space and inventory investment dollars to have the best possible selection of books in the store. Before Ingram’s seminal innovation, publishers and retailers had a many-to-many supply chain with hundreds of publishers selling to thousands of stores. Wholesaling — stocking a warehouse that could provide books from many publishers — faced the same challenge. Wholesalers in those days were predominantly “local” — many of them had added a few trade books to their magazine and mass-market paperback selections.

. . . .

The trade books were worth more to the wholesaler, unit for unit. When a title took off, the wholesaler could order a big shipment from the publisher and it got orders for the book quickly from local accounts. That’s where the money in book wholesaling was in those days, pumping the bestsellers, not “backing up” a store’s need for an additional copy here or there across the range of possible titles.

The fact that wholesalers stocked very few titles didn’t stop stores from trying to order what they needed from them. The net result was unsatisfactory for everybody. Wholesalers couldn’t fill most of the orders they got. Stores found resupply of anything except bestsellers from the local wholesaler to be time-consuming and inefficient. And the net result was that it was very hard to for most stores to match inventory to demand.

And that was a big part of the reason that independent bookstores had trouble competing with the mall store chains as they built out. They couldn’t compete with a better or more responsive selection of books because the supply chain inefficiencies, which included the fact that there were hardly any in-store stock tracking mechanisms in those days before personal computers, made that an insuperable challenge.

And then Ingram changed everything.

. . . .

One day Hoffman entertained a former Bell & Howell colleague who showed him their new microfiche reader technology. The microfiche enabled the delivery of data on a piece of film that could be read by a projecting reader. Enormous amounts of data could be put delivered quickly and inexpensively by microfiche, if only the recipient had the “reader” machine to look at it. Hoffman and his team quickly grasped the potential benefits if a store placed its orders to Ingram with advance knowledge of what was in stock and what was not.

They hit on a formula. If the stores would pay the “rental” cost of having the reader (about $10 a month), then Ingram would deliver its complete inventory record to the stores weekly, including both the titles being stocked and the Ingram inventory as of when the microfiche was cut. The benefit to the store was that there was a high likelihood that their order would be filled (except for some titles whose stock had been depleted during the week.) That made Ingram their wholesaler of choice.

And to Ingram, the benefits were even greater than the increased volume of business. They no longer were processing reams of orders they couldn’t fill.

. . . .

It was this innovation by Ingram that actually spawned the first big uptick in the number of large and successful independent bookstores.

. . . .

For the next twenty years, until the mid-1990s, successful book retailing increasingly depended on delivering “selection”: larger and larger title counts in the stores. Big selections were the signal to the consumer that they would find what they wanted. With increasingly sophisticated communication with Ingram and B&T, stores could get most high-demand books in a day or two if they weren’t in stock. The mall stores and smaller independents suffered because their smaller selections were less of a magnet to the book shopper.

Then Amazon changed everything again, becoming the first store that carried every book and would tell you exactly how long it would take for you to get it. Of course, they did that leaning primarily on Ingram’s inventory and reliable service to deliver.

Link to the rest at The Shatzkin Files

Creativity

30 March 2018
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Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things.

Steve Jobs

Facebook to simplify privacy controls amid anger over breach

30 March 2018

From The Straits Times:

Facebook will roll out a centralised system for its users to control their privacy and security settings in fewer taps following an outcry over the way it has handled personal data.

The system, which will be introduced to Facebook users globally over the coming weeks, will allow people to change their privacy and security settings from one place rather than having to go to roughly 20 separate sections across the social media platform.

The company also announced that it will end its partnerships with several large data brokers which help advertisers target people on the social network.

The world’s largest social media company is under pressure to improve its handling of data after disclosing that information about 50 million Facebook users wrongly ended up in the hands of British political consultancy Cambridge Analytica.

The privacy settings will be clustered on a new page from where users can control the personal information the social network keeps on them, such as their political preferences or interests.

They can also download and review a file of data Facebook has collected about them. In addition, Facebook will clarify what types of apps people are currently using and what permissions those apps have to gather their information.

. . . .

“The last week showed how much more work we need to do to enforce our policies, and to help people understand how Facebook works and the choices they have over their data,” Facebook’s chief privacy officer Erin Egan and deputy general counsel Ashlie Beringer said in a statement on Wednesday announcing the new system.

. . . .

“The platform made similar promises many times before,” said Ms Zeynep Tufekci, an associate professor at the University of North Carolina who studies how technology affects society.

She pointed out that in 2010, Mr Zuckerberg said in The Washington Post that Facebook users needed simpler controls over their privacy and had promised then that Facebook would “add privacy controls that are much simpler to use”. Yet, eight years later, the same concerns have resurfaced, she said.

Link to the rest at The Straits Times

Even a U.S. Senator Can Botch a Recipe for Success

30 March 2018

Maybe it’s the Chicago Cubs winning their opening game yesterday, or maybe it’s something else, but PG has been thinking about Chicago.

Mike Royko was a life-long resident of Chicago. He grew up in an apartment over a bar on Chicago’s Northwest side. His mother was Polish and his father, Ukrainian.

Royko wrote over 7,500 daily columns for three newspapers, The Chicago Daily News, The Chicago Sun-Times,  and The Chicago Tribune. When PG lived in Chicago, it was a good newspaper town with two morning and two evening daily newspapers, not including The Chicago Daily Defender, which focused on Chicago’s large African-American community.

When Royko was growing up and to this day, Chicago has a wide variety of ethnic neighborhoods. For example:

  1. Pilsen – First, a Czech neighborhood, now the largest Mexican community in the Midwest.
  2. Avondale – Polish to the max. When PG lived in Chicago, it was the largest Polish city in the world with more Poles than Warsaw. One of the few places in the United States where you can hear Polish spoken on the streets.
  3. Lincoln Square – Germans
  4. Bridgeport – Irish. The home of five Irish Chicago mayors.
  5. Devon Avenue – Russian, Greek, Syrian, and Jewish communities plus a large and growing Indian population.

There are several more ethnic neighborhoods and Royko wrote about them all at one time or another.

Here’s an excerpt from a Royko column:

This simple little quiz is directed at those who love hot dogs. Not any hot dog, but the true, classic Chicago hot dog. The finest hot dog known to man.

Look at the following recipe and see if something is wrong. If so, what?

Chicago hot dog: Vienna beef hot dog, poppy seed bun, dill pickle, jalapeños, relish, mustard, ketchup. Place dog in bun. Cover with jalapeños, relish, mustard, and ketchup. Serve with dill pickle.

The flaws are so obvious that by now those with civilized, discriminating Chicago taste buds are snorting and sneering and flinging this shameful recipe to the floor and spitting on it.

It deserves nothing less.

But not merely because it includes ketchup and omits sliced tomatoes, chopped onions, and that miraculous dash of celery salt.

No, I won’t condemn anyone for putting ketchup on a hot dog. This is the land of the free. And if someone wants to put ketchup on a hot dog and actually eat the awful thing, that is their right.

It is also their right to put mayo or chocolate syrup or toenail clippings or cat hair on a hot dog.

Sure, it would be disgusting and perverted, and they would be shaming themselves and their loved ones. But under our system of government, it is their right to be barbarians.

The crime is in referring to the above abomination as a “Chicago hot dog.”

And who did it?

Brace yourselves for a real shocker.

Some time ago, a hot dog recipe book was put together by the American Meat Institute, the National Hot Dog and Sausage Council, and other groups that promote the eating of dead animal flesh.

They got their recipes by calling the offices of United States senators. Being publicity freaks, most of the senators responded.

Most of the recipes are ridiculous, since most senators are ridiculous.

And this shameful recipe was contributed by Senator Carol Moseley-Braun.

Yes, Senator Moseley-Braun, who claims to be a Chicagoan, actually told them that a Chicago hot dog includes ketchup. And that it doesn’t require chopped onion or sliced tomatoes or celery salt.

I don’t know what could have possessed her to do such a thing. She is a liberal Democrat, so I can understand her deep yearning to seize our money and throw it hither and yon like so much political confetti. That’s part of the natural order of Washington creatures.

But to publicly state that you put ketchup on a Chicago hot dog? And overlook celery salt? It is said that power corrupts. I didn’t know that it brings on utter madness.

. . . .

Maurie Berman, who owns Superdawg on the Northwest Side, where I’ve been eating classic hot dogs for about 40 years: “I see more and more desecrations of the Chicago hot dog. Yes, we provide ketchup, but we have the customer defile it himself.
“We say, ‘Sir, the ketchup bottle is on the side. We’ll ask you to squirt that yourself.'”
John Miyares, who serves hot dogs at Irving’s near the Loyola University campus, says: “No ketchup, no kraut. That’s the law. But when you’re younger and your mom lets you put ketchup on the hot dog, you get used to it, I guess. The people about 35 and over, they get upset if you mention ketchup, especially if they’re born and raised here. And even more if they’re South Siders.
“But we get a lot of students from out of town, and they all want ketchup. Except if they’re from New York. They want steamed sauerkraut.”
Pat Carso, manager of Demon Dogs on the Mid-North Side, said: “You have to ask for it. And more people are asking. I don’t know why. Maybe parents think it is better for their kids. But we choose not to put it on. Even if they say ‘everything.’ In here, that does not include ketchup. We don’t even keep ketchup up front. We have a little bottle in the back if people ask for it.”
These men are keepers of the flame. They are cultural and culinary descendants of the short Greeks who used to take their pushcarts into every Chicago neighborhood and would have thumbed the eyeballs of anyone who dared ask for ketchup.

And here’s a brief excerpt from another Royko column, What’s Behind Daley’s Words? 

The Daley in this column is Richard J. Daley, Mayor of Chicago for 21 years and one of the five Irish mayors of Chicago. Royko and Richard J. grew up in different Chicago ethnic neighborhoods and never got along.

 Several theories have arisen as to what Mayor Daley really meant a few days ago when he said:
“If they don’t like it, they can kiss my ass.”
On the surface, it appeared that the mayor was merely admonishing those who would dare question the royal favors he has bestowed upon his sons, Prince Curly, Prince Larry, and Prince Moe.
But it can be a mistake to accept the superficial meaning of anything the mayor says.
The mayor can be a subtle man. And as Earl Bush, his press secretary, once put it after the mayor was quoted correctly:
“Don’t print what he said. Print what he meant.”
So many observers believe the true meaning of the mayor’s remarkable kissing invitation may be more than skin deep.
One theory is that he would like to become sort of the Blarney Stone of Chicago.
As the stone’s legend goes, if a person kisses Ireland’s famous Blarney Stone, which actually exists, he will be endowed with the gift of oratory.
And City Hall insiders have long known that the kind of kiss Daley suggested can result in the gift of wealth.
People from all over the world visit Blarney Castle so they can kiss the chunk of old limestone and thus become glib, convincing talkers.
So, too, might people flock to Chicago in hopes that kissing “The Daley” might bring them unearned wealth. Daley, or at least his bottom, might become one of the great tourist attractions of the nation.
The Blarney Stone has become part of the living language in such everyday phrases as “You’re giving me a lot of blarney.”
That could happen here, too. People who make easy money might someday be described as “really having the gift of the Daley bottom.”
That is one theory. Another, equally interesting, goes this way:
Throughout history, the loyal subjects of kings and other monarchs have usually shown their respect with a physical gesture of some sort.
In some places, it was merely a deep bow or a curtsy when the ruler showed up or departed.
Others, who were even more demanding, required that the subjects kneel or even crawl on all fours. (A few Chicago aldermen engage in this practice.)
In some kingdoms, those who approached the big man were expected to kiss his ring or the hem of his royal clothing.
Daley has already ruled Chicago for longer than most kings reigned in their countries.
At this point, many of his loyal subjects view him as more a monarch than an elected official. It seems obvious that he intends to pass the entire city on to his sons, which is a gesture worthy of a king.
So it would be only natural that he might feel the time has come when he is entitled to a gesture of respect and reverence that befits his royal position.
And what he suggested would be simply a variation of kissing a ring or a hand. Instead of kissing the royal hem, we would kiss the royal ham.
Although I have not read of any king expecting a kiss in precisely the area the mayor described, why not? One of the hallmarks of Chicago is that we do so many things in an original manner.

Here’s more Royko at Four by Royko

Another Downtown bookstore was destined for closure. Then these buyers called.

30 March 2018
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From The Idaho Statesman:

For book lovers, the approaching end of Trip Taylor Booksellers was bad enough. Downtown Boise’s three bookstores would soon become two.

But as the news of Taylor’s going-out-of-business sale spread this month, a second of the three stores was being offered for sale with little fanfare. Its owners quietly braced to go out of business, too.

As potential buyers eyed their building, the couple who own Rainbow Books, a used bookstore at 1310 W. State St., faced the prospect that their shop could become a tattoo parlor.

“I steeled myself to the idea that the bookstore wasn’t going to go on after me,” said Laurie Deines, who co-owns the store and its building with her husband, Robb. “That was hard.”

. . . .

Then Bruce and Laura DeLaney came calling.

The DeLaneys own the third store, Rediscovered Books, at 180 N. 8th St. They offered to buy both the business and the building and to keep Rainbow Books going.

“That’s just so wonderful,” Deines said Wednesday, one day before the Deineses and the DeLaneys were scheduled to close the deal. The DeLaneys have been managing the store for the past two weeks. “I don’t have to dismantle the store or have a closing sale. I just had to give them the key.”

. . . .

The DeLaneys opened Rediscovered in 2006 in the Overland Park Shopping Center near Overland and Cole roads. He was a chemist who worked for Micron Technology, she an elementary-school music teacher in Boise and Meridian. “We thought there was a need in Boise for a classic indie bookstore,” Bruce DeLaney said. The couple moved the store Downtown in 2010.

. . . .

Rediscovered, meanwhile, seems to be thriving. It has 14 full- and part-time employees. Bruce DeLaney declined to disclose sales, though he said they have grown every year since the store moved Downtown.

. . . .

The DeLaneys have fostered a reading community. Bruce DeLaney said the store took part in 250 events last year in the store, at The Cabin literary center, in schools and elsewhere. The couple in 2015 expanded the bookstore into a neighboring space previously occupied by a clothing store.

When Rainbow went on the market, DeLaney said he and his wife thought its closing would be a shame, while its purchase would offer a chance for their own business to evolve.

“It’s been a kind of North End institution: People take their kids there. Boise High kids come over when ‘The Great Gatsby’ gets assigned,” DeLaney said. “It’s a wonderful, friendly little bookstore, like the kind that used to be all over the country.”

. . . .

Rainbow’s rescue comes amid tough times for bookstores all over the Treasure Valley. In 2016, Nampa lost The Book Exchange and Pearson’s Twice Sold Tales. Yesteryear Shoppe, also in Nampa, is in the process of closing.

Link to the rest at The Idaho Statesman

Microsoft Quietly Rolls Out Its E-bookstore

30 March 2018

From Publishers Weekly:

After opening in April, the Microsoft e-bookstore, developed in cooperation with the Ingram Content Group, is steadily adding more titles to its offerings. Microsoft intended the launch to be a “gradual rollout, not a single big unveiling,” according to Marcus Woodburn, v-p of digital products for Ingram.

Titles for the store are supplied via Ingram’s CoreSource digital asset management distribution platform, and the store offers publishers both agency and wholesale business models. Since the launch, a Microsoft spokesperson said, the site has seen double-digit monthly growth in traffic and purchases.

The store is designed exclusively for the users of Microsoft’s Windows 10 operating system, on which more than 600 million devices run, though title pages of books in the store can be retrieved by search engines. Marcel Garaud, a senior director of business development at Microsoft, said that the e-bookstore is designed to “offer millions of people a great opportunity to get more value out of their PCs.”

E-books can be purchased through the Microsoft Store app or on Microsoft’s website. Customers can read their e-books using the Edge browser embedded in the Windows OS, or download them for offline reading.

“We’re currently focused on making finding, purchasing, and reading an e-book on Windows a seamless experience,” Garaud said. He cited a “simplified interface, customizable learning tools, offline support, and a growing catalogue of available titles” as some of the store’s assets.

. . . .

The store, he noted, is “investigating all publishing models, including self-publishing.”

Link to the rest at Publishers Weekly

PG says competition is good, but Microsoft is taking on a tough competitor in Amazon.

Plus PG hates the Edge browser and is annoyed whenever Windows pops it up.

Romance community be warned: Amazon is stripping rankings from titles

29 March 2018

From Hypable:

A big blow to the romance community has surfaced as romance and erotica authors are having their titles on Amazon stripped of their ranks and reviews.

Towards the end of March, the romance community began to notice romance and erotic novels being stripped of their ranks and/or reviews, without an explanation.

Although Amazon has yet to make a statement about what’s going on, it’s clear that any book that contains adult content could be stripped. Of course that’s devastating to both authors and readers. Both of these things allow authors to successfully sell their works and helps readers to find titles they would be interested in.

In an effort to try and save their reviews and rankings, some romance/erotica authors have taken to removing any keywords that might cause their titles to be stripped. For those that have published in the erotica category, it might prove even more difficult to protect their books from these changes.

Since Amazon isn’t being transparent about what is happening, it’s not clear why these novels are being stripped. Many authors believe it could be in response to the FOSTA bill, while others believe it could be an internal update from Amazon to push these books off the ranks.

The Fight Online Sex Trafficking Act (FOSTA) was touted as a bill to make everyone safer by creating accountability for internet companies. However, the bill was met with great backlash for many reasons, including the amount of censorship it would allow.

As the Electronic Frontier Foundation explains, the bill will “force online platforms to police their users’ speech more forcefully than ever before.”

One of the first major impacts of the bill was that Craigslist pulled down its personal ads section. And shortly after, the romance community started noticing abnormal activity on Amazon regarding erotica titles, as well as romance titles.

Link to the rest at Hypable

Empirical Demonstration that the Hindsight Bias Renders Patent Decisions Irrational

29 March 2018

Hindsight bias, also known as the knew-it-all-along effect or creeping determinism, is the inclination, after an event has occurred, to see the event as having been predictable, despite there having been little or no objective basis for predicting it.

A basic example of the hindsight bias is when, after viewing the outcome of a potentially unforeseeable event, a person believes he or she “knew it all along”. Such examples are present in the writings of historians describing outcomes of battles, physicians recalling clinical trials, and in judicial systems trying to attribute responsibility and predictability of accidents.

Although the paper excerpted below relates to hindsight bias in patent law, PG thinks third parties judging the originality of works subject to copyright and trademark protection may also suffer from hindsight bias.

The author of the OP is Gregory N. Mandel, the Dean and Peter J. Liacouras Professor of Law at Temple Law School.

PG has removed footnotes and placed part of Section II – Hindsight Bias in the Non-Obvious Analysis in front of Section I – Introduction to make this excerpt more understandable for those unfamiliar with patent law.

The OP also includes a review of several academic studies that describe how hindsight is discovered and measured. More importantly, the OP also describes how this cognitive error is almost impossible for most individuals to overcome.

From The Ohio State University Moritz College of Law:

Section II – Hindsight Bias in the Non-Obvious Analysis (Partial Excerpt)

In order to obtain a patent, an inventor must satisfy five validity  requirements: subject matter, utility, novelty, non-obviousness, and adequate  disclosure. The subject matter and utility requirements present minimal  hurdles. Subject matter concerns the types of invention that are patenteligible.  The Patent Act delineates four broad areas of eligible subject  matter: processes, machines, manufactures, and compositions of matter. The  Supreme Court has interpreted this eligibility extremely broadly, holding  that “anything under the sun that is made by man” is patent-eligible. Utility  similarly presents a minimal standard—it does not require that the invention  be better than previous subject matter, only that the invention provides  “some identifiable benefit.” The vast majority of inventions easily satisfy  the subject matter and utility validity requirements.

Novelty entails a variety of intricate rules, but in essence boils down to  the requirement that the invention not have been previously patented,  published, known or used by others, in public use, or on sale. An invention  is novel unless the prior patent, publication, or use concerned subject matter  that contained each and every element of the invention. The novelty requirement bars some patent applications, but most applications contain at least one element that distinguishes them from a single prior reference. Adequate disclosure comprises several requirements concerning what an inventor must disclose in a patent application in order to receive a patent. For instance, it requires that the disclosure enable others to practice the invention, and to practice it in the best mode known to the inventor. Like novelty, adequate disclosure concerns do arise, but in the majority of circumstances the inventor has control over disclosing the invention sufficiently.

The non-obvious requirement thus emerges as the most critical and core patent validity requirement. It is the requirement that mandates that inventions contribute more than a trivial advance in order to be entitled to a patent. The importance of the non-obvious requirement is demonstrated by the reality of patent litigation—the non-obvious requirement is both the most commonly litigated patent validity issue and is the patent validity requirement most likely to result in a patent being held invalid.

The non-obvious requirement provides that a patent shall not issue for an  invention if “the differences between the subject matter sought to be  patented and the prior art are such that the subject matter as a whole would  have been obvious at the time the invention was made to a person having  ordinary skill in the art to which said subject matter pertains.” The Patent  Act does not define the term “obvious,” and neither the Supreme Court nor  the Federal Circuit—the federal appeals court with jurisdiction over most  patent appeals—has ever done so either.

The non-obvious standard of § 103(a) requires the decision-maker to  make an historical judgment: whether the invention would have been  obvious at the time the invention was made in the past. To reach a proper  non-obvious conclusion, the decision-maker must step backward in time to a  moment when the invention was unknown. Unfortunately, this mandate is more easily stated than achieved. Humans are cognitively incapable of  ignoring what they have learned (here, that the invention was achieved), as  required for the proper ex ante analysis. Psychologists have studied this  phenomenon and have termed it the “hindsight bias.”

Section I – Introduction (Partial Excerpt)

The experimental study reported in this Article provides the first empirical demonstration of the hindsight bias in patent law. The results are dramatic: the hindsight bias prejudices patent decisions far more than anticipated. Not only are patent decisions routinely and unintentionally made in contradiction to patent doctrine, but even more significantly, patent law itself is incoherent. Judges, jurors, and patent examiners seemingly lack the cognitive ability to make decisions in the manner that patent law currently requires.

The core requirement for obtaining a patent is that the invention was not obvious at the time it was invented. Only significant technological advances merit award of a patent. The reasons for the non-obvious requirement are evident: trivial advances will be achieved without the necessity of a patent incentive, and trivial advances do not benefit society enough to warrant imposing the costs of a patent monopoly on the public. Though the nonobvious requirement sounds logical, as applied it is irrational.

Proper non-obvious determinations are unachievable because they require the use of hindsight. The decision should turn on whether the invention was non-obvious in the ex ante world just prior to the invention’s creation. A proper non-obvious decision must not take into account the ex post fact that the invention was actually achieved. The present study, however, reveals that people are cognitively incapable of making such an evaluation properly. Rather, decision-makers unconsciously let knowledge of the invention bias their conclusion concerning whether the invention was obvious in the first instance. These findings are supported by other studies in behavioral economics and cognitive psychology outside the patent context. Individuals are intellectually incapable of preventing hindsight information from impacting their judgments about the past. Individuals routinely (and unconsciously) overestimate what would have been anticipated in foresight and tend to view what actually occurred as having been relatively inevitable and foreseeable.

The hindsight bias is recognized in common wisdom: “hindsight is 20/20,” and being a “Monday morning quarterback” exaggerates one’s foresight. The hindsight effect is also treated in law. For instance, it is the basis for concern that knowledge of a search outcome (whether incriminating evidence was found) will affect judgments concerning whether there was probable cause for the search in the first instance.

The failure of the legal system to correct for the hindsight bias in patent law likely stems in part from a failure to recognize its magnitude, pervasiveness, and unshakable nature. The results presented here indicate that there is a greater hindsight effect for non-obvious determinations than for other legal judgments. In one scenario, based upon an actually litigated patent, approximately one-quarter of mock jurors considered an invention obvious in the foresight condition (the doctrinally accurate analysis), while about three-quarters of mock jurors considered the same invention obvious in hindsight (the condition in which patent decisions and litigation actually occur). This effect (nearly half of the respondents shifted their legal conclusion in hindsight) is greater than that found in other legal hindsight bias studies in areas including negligence, punitive damages, and civil rights litigation. A second scenario, based on a different patent case, similarly found a very substantial hindsight bias: approximately one-third of the respondents shifted their conclusion in hindsight.

. . . .

Jury instructions that explicitly identify and warn against the hindsight bias also fail to mitigate its effect. The present studies each included a condition in which mock jurors were warned of the hindsight bias and instructed to guard against it in a manner based on Model Jury Instructions. The explicitly warned jurors did not display a statistically lower hindsight bias than the jurors who received no warning. Similarly, the presumption of validity that adheres to issued patents is not intended to remedy the hindsight problem and does not do so. The hindsight bias remains unresolved in existing patent law and practice.

These findings run counter to the dominant scholarly and policy patent analyses of the last decade. A nearly unchallenged chorus now calls for tightening lenient patent standards, particularly the non-obvious requirement. The results of this study indicate, however, that the nonobvious  requirement actually often may be applied too stringently. This has  significant implications for patent and innovation policy. Critics of the  current non-obvious requirement will need to reconsider the bases of their  challenges, and likely need to revisit the contours of their prescriptions for  reform. Revising non-obvious doctrine or practice, for instance, may not  provide the panacea that many assume.

Link to the rest at The Ohio State University Moritz College of Law

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