McGeorge School of Law

Formulating A Legal Conception Of Creativity

August 28, 2010

Professor Amy Landers in her article, Ordinary Creativity in Patent Law: The Artist Within the Scientist, 75 Mo. L. Rev. 1 (2010), uses theories from psychology, sociology, history and the philosophy of science to examine and propose how patent law can formulate a legal conception of creativity.

Professor Landers explains that patent law is intended to promote the creativity of scientists and engineers. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Her work focuses on the U.S. Supreme Court's KSR International Co. v. Teleflex Inc. (KSR) decision, which represents patent law's first effort to consider the origin of scientific thought. KSR considers non-obviousness, a patentability requirement that relies on the decision-maker's conception of the problem-solving capabilities of the person of ordinary skill in the art. In brief, the non-obviousness requirement holds that, if a hypothetical person skilled in the relevant domain could re-create the invention as a predictable variation of the state of the art, the patent claim is obvious and not worthy of patent protection.

For Professor Landers, the Court's choice of this phrase is intriguing, particularly because creativity as a human attribute is notoriously difficult to define. In order to provide a theoretical background that leads to an understanding of KSR's ordinary creativity standard, Professor Landers explores creativity from an interdisciplinary perspective, proposing guidelines that may be used to implement KSR's flexible standard. More broadly, this work proposes that these interdisciplinary sources can be useful to the field's understanding of the process of invention.