Notre Dame 2010 Creativity and the Law Symposium

Panel One
Christopher Buccafusco, Chicago-Kent – Moderator

Gregory N. Mandel, Temple Law, To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity

IP has historically not paid too much attention to how to promote creativity, but a wealth of psychological and other research has emerged, yielding valuable lessons for IP. Relevant concepts: convergent versus divergent thought processes. Novelty and appropriateness are both required, and this requires multiple cognitive processes in harmony. Originality mostly requires divergent thought, whereas appropriateness requires more analytical, logical convergent thought processes. Most people have difficulty alternating between the two types of processes.

Problem-finding and problem-solving: different kinds of creative achievements. Most people are better at problem-solving; few are proficient at both. IP pays no attention to this, treating all creative achievement uniformly, whether patent or copyright. Nonobviousness in patent applies both to problem-finding and problem-solving, even though the motivations differ in the two areas.

Motivation: intrinsic motivation (individual’s inherent interest/involvement with the challenge) is more likely to produce more creative outputs than extrinsically motivated work (expectation of financial or other awards; past or expected evaluations). Sounds a note of caution across IP. May be detrimental to the extent it turns the reward into a prize. Extrinsically motivated individuals are less engaged and more likely to rely on well known or algorithmic processes to solve the problem. Intrinsically motivated individuals are more likely to explore the challenge and come up with a creative solution.

How to turn external reality into an opportunity that is internalized for an inventor/artist? Certain kinds of external motivators work. A reward contingent on a creative accomplishment can increase intrinsic motivation. Commissioned work is often less creative. Reward that confirms creator’s autonomy/competence without instituting control, that can enhance creativity.

How individuals understand the IP system will thus have an effect on their creativity. If it’s seen as only allowing reward for sufficient creativity, it may be internalized to produce more creative outcomes. Patent’s nonobviousness requirement may promote intrinsic creativity, while copyright’s minimal originality standard may produce extrinsic task performance rewards.

Collaboration: a variety of research shows collaboration can be a big driver of creative achievement. Scientists and artists generate more creative outputs when exposed to more diverse creative input references. Creative scientists/artists often have exposure to multiple disciplines. Cross-pollination across fields works. Extraordinary innovation comes from integrating teaching in disparate fields.

But IP dissuades certain types of creative activity. Perhaps due to myths about differences between scientists and artists (left versus right brain). Troubling because collaboration is now an important driver of innovation.

Large-scale collaborative activity: need for multidisciplinary expertise and often substantial resources for new endeavors. Creativity in such situations necessarily entails formality and adherence to guidelines, so how do we also motivate intrinsic creativity? We want them to internalize the project’s goals. Can IP help structure the social identity of the group? Perceived relationship among contributors plays significant role in success—high levels of interaction and interdependence lead to more creativity. May explain some of the success of open and collaborative peer production. Viewing themselves as a social group, even though they’re spread out all over the world, each individual may be intrinsically motivated to perform his/her own task and coordinate it with the larger goals. Side effect of self-selection.

But the risk is convergent thinking, failure to express opinions “outside the box.” May need periods of individuals working on their own. Prospect of patent or copyright may promote creative output as a motivational goal.

Sean Seymore, Vanderbilt Law, Atypical Inventions

Patent law doesn’t accommodate atypical inventions very well. In theory, patent law’s one-size-fits-all regime should allow the law to evolve in judicial decisions over time as applied to different fields. In practice, patent lags behind new technology.

Patent doctrines from industrial age, 1800s (electrical, mechanical), are incompatible with inventions emerging from unpredictable fields—chemical inventions shoehorned into old law. Judges have long struggled with complex technical subject matter; shows no signs of improvement. Federal Circuit was created to bring stability and predictability, but may therefore be reluctant to modernize patent doctrines. Jurisprudence disconnected from technical communities.

Atypical inventions: a technical aspect of invention/process doesn’t conform to established patent standard. E.g., accidental inventions. Or the science itself doesn’t fit a well-established paradigm: incredible inventions. They tend to be revolutionary or paradigm-shifting, and they often represent a significant technological leap forward, creating new possibilities.

Accidents: First paradigm of invention is inventor sitting around, thinking, conceiving of a compound: A+B=C, forming a complete mental picture of C. Then inventor reduces that mental picture to practice, either by making it or filing a patent application describing how to make it. But what if the inventor goes to the lab and ends up making X though she intended to make C? Scientist has to take time to figure out (1) what she made and (2) what it does. Famous accidents: synthetic process for making indigo; ferrocene; 18-crown-6; buckminsterfullerene—all of these led to the Nobel Prize for the inventors.

Why does it matter? Today the filing date is constructively the date of the invention. One can establish an earlier date of invention, as far back as conception, with adequate proof. This is required to exclude prior art, avoid potentially invalidating prior art, etc. With accident, there’s a gap in time between the accident and the complete mental picture, leading to a potential loss of patent rights. Might lead to an accidental inventor losing patent rights based on a prior art reference/patent application where the reference’s author never made the thing!

This rule values mental over physical contributions. Dan Burk has a paper on this. Alternative: allow the date of the accident to serve as the invention date, as long as the inventor is reasonably diligent in investigating/elucidating its structure. Abbott Labs case from 1999 held that a compound that was physically made and sold in claimed form was complete and available as prior art even though its structure and identity were unknown at the time of sale. Tim Holbrook: The invention had been reduced to practice even though it had yet to be conceived. There should be symmetry between invention completeness for patent defeating purposes and for patent attaining purposes.

Incredible inventions: perpetual motion machines, methods to treat cancer, methods to treat baldness. Often rejected for lack of usefulness: can’t operate to produce intended result, if PHOSITA has reason to doubt the truth. Examiner has to build pf case of inoperability, at which point inventor has to rebut by showing operation—failure leads to rejection for lack of utility and enablement. Credibility lag in mainstream science: examiner often doesn’t know what PHOSITA would think. Problem: peer review can hinder change, blocking dissemination of novel ideas; this can carry over into patent law. Subjective bias: Patent Office and courts felt need to protect public from incredible inventions. Have in the past miscategorized possible inventions as impossible ones. Consequences: loss of patent rights/disincentive to file. Makes patent ignore cutting edge of technology.

Instead, should focus on technical merit instead of credibility. Screening tool should be enablement alone, not usefulness. Enablement is based on objective technical factors like claim breath and the technical aspects of the disclosure. How his rule would work: applied to a claim for “any and all devices and systems which operate in such a manner as to violate the Second Law of Thermodynamics”—any and all is a signal of a bad patent already. Per se nonenabled because of the infinite breadth. Fed Circuit affirmed rejection solely on nonenablement grounds because the disclosure revealed that the invention could not work as claimed.

Keith Sawyer, psychology, Washington U, The Western cultural model of creativity: Its influence on intellectual property law

Studies creativity in groups. Ten beliefs not held by all cultures, associated with individualistic cultures; collectivist cultures have a dramatically different cultural model of creativity. Western model is not explicit, absorbed by osmosis; emerged in 17th-19th centuries.

Is the current IP regime grounded in this belief? If so, how? If this belief is false, what alternative IP regimes would better align with scientific research?

1. The essence of creativity is the moment of insight.
2. Creative ideas emerge mysteriously from the unconscious.
The research doesn’t bear these out. Action (implementation) changes and forms the creative output. Ideas don’t emerge fully formed; creativity takes place over time and the medium is an essential part of the creative process; ideas come while working. Eight stages of creative process: find and formulate the problem; acquire knowledge relevant to the problem; gather related information; take time off for incubation, allow mind to wander; generate many ideas (this is where the Western model focuses); combine ideas in unexpected ways; select the best ideas (good creators have lots of ideas, most of which are bad); then finally externalize the ideas in materials/relevant media. Ideas develop and transform while the author is expressing them; a series of mini-insights come from the background work.
3. Rejecting convention results in greater creativity. Kids are more creative than adults. Creativity is a complete break with the past. Research does not support this belief. Creativity has to be explained by reference to previous experience and prior knowledge. Formal training and conscious deliberation are essential; sparks of insight follow hard work. Most innovations involve breaking at least one rule, but the others stay the same; knowing which rule to break is the key.
4. Creative contributions are more likely to come from an outsider than an expert. Leading people in a field are bound up in the old way of doing things. Student-edited law journals seem to reflect this belief! Research: no, it generally takes ten years to become an expert capable of making creative contributions.
5. People are more creative when they’re alone. Rather, ideas tend to emerge in conversation. Collaboration has increased dramatically over the decades, and the more authors a paper has, the more it’s cited. Grain of truth: creators spend time alone as well as talking: incubation period.
6. Creative ideas are ahead of their time, not recognized until later. This is a myth—e.g., that Gregor Mendel was not recognized at his time. Reputation during lifetime almost never increases after their deaths.
7. Creativity is a personality trait; if you have more of it, you’re more creative in every endeavor, and if you don’t you won’t be creative. Research: creativity is not a stable personality trait, though are there dispositions that make a difference—intrinsic motivation. They can be learned and are not genetic.
8. Creativity is based in the right brain. This is not true.
9. Creativity and mental illness are connected. This is not true.
10. Creativity is a healing, life-affirming activity. This is supported by the research, at least in Western cultures oriented towards individualized, self-actualizing goals. Less likely to be part of a non-Western cultural model of creativity.

Jessica Payne, psychology, Notre Dame, Sleep on It!

People have been scanned performing creative activities—associating words: see amygdala and anterior cortex, associated with emotions, before the insight comes.

The neurobiology of sleep, memory, and creativity. Ideally, you’d spend a brief amount of time transitioning into deep delta sleep. Neurochemical modulation varies across the wake-sleep cycle. Brain is doing plenty of stuff at night, including with SSRIs (cf. depression drugs). Regional activation during sleep: prefrontal cortex, associated with rationality, is switched off, but other portions of the brain are active. There’s communication between hippocampus and amygdala/neocortex.

Episodic memories (where you parked today) versus general knowledge (where to park) are separable but associated in the brain. Sleep consolidates memories. It also transforms and restructures what we know, allowing us to use memories for the future. Neat point about false memory test (show people a bunch of words related to a topic; many will say they recognize additional words also related to the topic as having been shown to them)—that’s a false memory in one sense, but represents an ability to extract the gist of the list. Memory deteriorates after 12 hours of wakefulness. But deterioration slows substantially for people who sleep. Gist words in false memory test: deterioration for wakefulness, but improvement for people who sleep—you rarely see people improving after delay, but here it is!

We also remember what’s emotionally relevant: if someone sticks a gun in your face, you will remember the gun very well but not the face of the perpetrator, with significant implications for eyewitness testimony. Stimulus: background scene is neutral; foreground is either a car accident or an intact car. Test people on components of scene. If scene is neutral, people are basically the same at remembering foreground and background. If scene has emotional object in foreground, memory for foreground is better and background worse v. neutral scene. Wakefulness: same massive deterioration over 12 hours, whether people are awake or asleep. For emotional scenes, deterioration over wakefulness, deterioration for background after sleep, but enhancement for foreground after sleep.

Brain calculates what to remember and forget, and how to put things together differently. Unusual intrusions in data for the list recall test. Kept finding people who recalled not just semantic associates, but words like “cloud,” “swirl.” Where did they come from? These intrusions were 2 ½ times more common after sleep.

Lots of anecdotal evidence of discoveries after sleep (and years of preparation): famous story about Kekulé conceiving of benzene as a closed, hexagonal, six-membered ring.

Experiment: teach people to pick one of two images that are, though they’re not told, transitive. That is, the rule is A > B, B > C, C > D, and so on, but the images are nonsense images. Can people learn the transitivity rule? Turns out, not very well—but if you let them sleep, they are much more likely to make the intuitive leap and say A > C even though they’ve never seen that pairing before. Similar results on finding hidden mathmatical rules—sleep seems to involve processing, connecting disparate items, finding patterns/rules in daily experiences even without prior knowledge that rules are there.

Jessica Silbey: auditory versus visual memory—watching a film of the ocean may be like being at the ocean. What role for false memories?

Payne: dreams tend to be profoundly visual. Our ability to accept crazy visual information in dreams without freaking out is not well understood, but may well have to do with deactivation of prefrontal cortex.

Q for Mandel: how to set level of creativity in copyright law to incentivize better?

Mandel: Has some ideas for joint authors/inventors—when we set the level in copyright, we want to take many factors into account. Intrinsic motivation would imply elevated standard. But may not be overall socially optimal.

Mark McKenna’s comment highlighted the tension between Seymore and Sawyer on the issue of impossible discoveries—Sawyer maintains that, though peer review has problems, mostly people who get things right are accepted broadly as having gotten things right. It does happen in isolated incidents, but over large samples creative breakthroughs are generally recognized as breakthroughs at the time. Sawyer does agree with Seymore on the importance of accidents: recognizing a good idea is incredibly important.

Seymore is more interested in the importance of the time lag—if you submit a patent application at the same time you submit your results for peer review, the scientific community will lag behind the PTO.

McKenna also asked Payne about suggestibility of memory: she finds some pieces of Elizabeth Loftus’s work more convincing that others. You can’t really run an experiement where you convince someone they’ve been sexually abused by their fathers—a handful might be susceptible (and kids are a huge area of investigation), but how many? Memories are suggestible, but that’s the price we pay for tremendously flexible systems that don’t create exact reproductions of what we encounter: reproduction is not what memory is for. Use, organization, and solving future problems are the functions of memory, not pure recording.

Under stress, you get false memories but they tend to abide by the general gist of the story. That does have big implications for the law, but we need more research to find its boundaries.