Intellectual property law and the psychology of creativity

Creativity and the process of innovation are fertile grounds for psychological research, with applications spanning education, the arts, business and science. Last year, the U.S. Supreme Court took up the topic of creativity in the context of patent law. The case, Mayo Collaborative Services v. Prometheus Laboratories, Inc., revisited a long-observed legal prohibition on patenting the "laws of nature" and illustrates one of the many ways in which law, particularly intellectual property law, can be informed and shaped by psychological principles.

At issue in Mayo was a series of patents issued to Prometheus Labs regarding the treatment of autoimmune diseases with a drug called thiopurine. Although use of the drug is widespread, finding the correct dosage for each patient had been difficult because people metabolize the drug at different rates. Prometheus Labs discovered that certain compounds in the blood called metabolites accurately predicted whether a patient's dosage was likely to be effective or cause dangerous side effects and sought to patent this discovery. The patented process directed physicians to administer thiopurine to the patient, to measure the quantities of metabolites in the patient's blood and to adjust the dosage of thiopurine accordingly.

The Supreme Court, reviewing a challenge to the patent, held that Prometheus Labs had attempted to patent a law of nature that was inherently non-patentable. While recognizing that every invention involves, to some extent, a law of nature, the court noted that the patents at issue added nothing new or original to the biological relationship between thiopurine and metabolite levels. The court held that allowing Prometheus Labs to patent such a discovery would stifle future research and innovation, violating the central goal of the patent system: to encourage innovation.

The court, in Mayo, identified the competing incentives created by the availability of patents: The rights granted by patents are intended to provide an economic incentive for innovation but may also restrict the flow of information and cross-fertilization of ideas among inventors. To balance these interests, patents are generally issued only for inventions that are novel, not obvious and useful. The court also recognized the breadth of the fields to which patent law (and, more broadly, intellectual property law) applies. Different types of creative activities may involve different aspects of creativity.

Psychologists have much to contribute to an understanding of the cognitive processes by which people engage in creative activity, how those processes are similar and different across substantively different fields, what motivates creative activity, whether and how the rules of intellectual property can encourage or stifle innovation, and what else might be done to cultivate innovation. The processes involved in how people creatively identify problems to be examined and how they craft innovative solutions to those problems can differ — drawing differently, for example, on divergent or convergent thinking (see Northwestern University Law Review, 2010). In addition, how observers evaluate the novelty, obviousness or utility of an invention has implications for the application of the law.

Scholars have also begun to think about how psychology and patent law may come together to influence "large-scale collaborative creativity" (see Notre Dame Law Review, 2011). Modern scientific endeavors frequently involve teams of scientists and other scholars, rely on multidisciplinary contributions and unfold over lengthy periods of time. Whether and how individual contributors to these enterprises are motivated to be creative, how collaborative processes influence creativity, how information is shared (or not) in ways that promote or hinder creative processes, and other questions about how innovation occurs in group settings have important implications for the courses these large-scale projects will follow.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).