The Learning Needs of the Patent System: Implications from Institutionalism for Emerging Technologies Like Synthetic Biology

Abstract

This paper transposes dominant normative critiques with an institutionalist view of patent law by analysing how the multi-institutional setup of the patent system may determine the quality and coherence of change and decision-making. The institutional environment of the patent system makes it opaque, sticky and complex. These significant features are examined for the first time in this paper. Critical opportunities for statutorily determined decision-making are best described as learning needs, expressed through heuristics such as the person skilled in the art, inventive step determinations and prior art. These learning needs, set against the broader institutional environment, severely constrain current goals and limit future decision-making possibilities. In the case of an emerging technology such as synthetic biology, the management of learning needs is likely to lead to decisional outcomes marked by a desire for short-term gains in certainty and homogeneity, rather than substantive goals.