How ordinary judges and juries decide the seemingly complex technological questions of patentability over the prior...

Determinations of patentability over the prior art are often thought to raise questions that are so technologically complex that they require special training and judgment to answer, especially in fast-moving fields like modern biotechnology. This essay explores the somewhat counterintuitive argument that under the U.S. system they do not and should not. According to this view, determinations of patentability over the prior art are based entirely on factual inquiries that are best made by lay judges and juries, just like the factual determinations these people regularly make in any ordinary nonpatent trial. This is good because judges and juries are adept at these determinations, and because appellate courts are adept at reviewing them. It leads to a system that is cheaper overall in allowing private litigants to better predict outcomes that also better approximate the correct answer than would be possible under other regimes premised upon the expert technological knowledge and judgment of a decisionmaker.