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ISBN: 9781552213537-21

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Evidentiary Problems of Multidisciplinarity in the Litigation of Business Method Patents

From: Intellectual Property for the 21st Century

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It is now widely accepted that judicial decision making is not a neutral exercise in interpretation of established law and consequently decisions, particularly in novel areas, should take account of policy considerations. In this article the author uses the example of litigation over the patentability of business methods to problematize this line of reasoning. Sound policy typically turns on empirical evidence, and while there is a significant body of research on the question of whether business method patents promote innovation, such evidence has been introduced only indirectly, though academic articles. This does not allow adequate examination of the reliability of the evidence. Introducing empirical social science evidence directly in litigation faces a number of hurdles which are discussed. Ultimately the author argues that it is beyond the institutional competence of the courts to adequately take account of empirical social science evidence on the issue of whether business method patents are good for innovation. While the details of the arguments are specific to the context of business method patents, the author suggests that the issue of institutional competence should always be taken into account when considering whether empirical social science evidence should drive judicial decision making.

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Norman Siebrasse

Norman Siebrasse is a Professor of Law at the University of New Brunswick. He received his BSc in Engineering Physics and his LLB from Queen’s University, before clerking at the Supreme Court of Canada for the Honourable Madam Justice McLachlin during the 1991–92 term. After receiving an LLM from the University of Chicago, he joined the University of New Brunswick Faculty of Law in 1993. Professor Siebrasse teaches in the areas of intellectual property law, commercial law, and remedies. His research focuses on patent law, and his blog www.SufficientDescription.com comments on recent Canadian patent cases.