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
PG, Was this in their law review journal?