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Wednesday, May 28, 2014

Schemas, Shortcuts, and Software

We are constantly being provided with information -- whether we want it or not -- about what is going on in the world around us.  Luckily our brains are equipped to handle the data (at least most of the time).  In cognitive science, schemas are structures that help us to organize and interpret this information efficiently.  We also use heuristics, or shortcuts, to process information quickly.  And for the most part, these are good things.  We may have a schema that organizes the data we need to drive safely and when faced with an unexpected obstacle, we have heuristics that help us to avoid that obstacle in time.  

(NB - I'm still making sure I'm understanding the cognitive science terminology, etc. - see my earlier post on the subject...the point of this post isn't the precision of the cognitive terms but rather some implications in law.)

 This raises at least two concerns for me.  First - while it certainly is important to be able to process legal issues quickly,  when considering questions about the law and its applications, should we always be focused on efficiency and speed or are there times when getting it right, even when it is slow or inefficient, should take precedence?  Second - what happens when the schemas and heuristics we are working under are wrong?

I have an article that's coming out later this year in the George Washington Law Review that looks at the schemas and some of the heuristics that have arisen around the question of whether software and computer-related inventions should be eligible to receive patents.  My arguments are basically that there are two schemas that are driving the software patent conversation -- the bad patent schema and the troll schema.  In very brief, the schemas go like this:  the Patent Office can't properly examine patent applications on software and computer-related inventions so it is issuing many invalid patents in this area -- therefore we should ban software patents.  And because a lot of these patents are invalid and because they are easy to obtain, etc., patent trolls assert software patents in disproportionate numbers and trolls are bad -- therefore we should ban software patents.

Basically there is a framework set up underneath the software patent discussion that has very little to do with whether we want good software patents -- in my opinion, a bad schema.  This problem is exacerbated by some flawed shortcuts, which I won't go into here.

But I don't want to make this post all about my paper or software patents or patent trolls (regardless of how much I like all three of those things).  I'm wondering where, besides this question in patent law, is the conversation being had largely unrelated to the central question.  Patent law can't be unique in this area - at least I hope not.  Any thoughts of other flawed schemas??  Are there other important areas of law where the conversations are being misdirected by the structure set up to examine the problems?  

Research on heuristics and the implications of these on law are much more common.  In fact, much work has been done on flawed shortcuts.  For example, stereotyping is one prominent heuristic that has been given a lot of ink in scholarly literature - in part because it often strikes us as just plain wrong.  I imagine its a lot harder to sell you on a stereotype narrative about patent trolls, isn't it?  This brings me back to my troll taxonomy - as long as patent trolls are seen as universally bad, it is unlikely that any argument that the stereotype is flawed will succeed.

Posted by Kristen Osenga on May 28, 2014 at 03:58 PM in Intellectual Property | Permalink

Comments

Yes, a major flawed schema is legal education. Law professors teach their students through a schema that was developed over 100 years ago. This schema ignores the recent developments in education and understanding how the mind works.

Duane F. Shell et.al., The Unified Learning Model (Springer 2010)is an excellent introduction to how the brain works in relation to teaching students on all levels.

Posted by: Scott Fruehwald | May 28, 2014 4:11:26 PM

"In very brief, the schemas go like this: the Patent Office can't properly examine patent applications on software and computer-related inventions so it is issuing many invalid patents in this area -- therefore we should ban software patents. And because a lot of these patents are invalid and because they are easy to obtain, etc., patent trolls assert software patents in disproportionate numbers and trolls are bad -- therefore we should ban software patents."

Kristen, those don't sound like cognitive schemata to me. They sound like rational (i.e., based in some kind of logical whether deductive, inductive or otherwise) arguments. My understanding of cognitive schemata is that they are far more fundamental to our cognition of objects in the world - i.e., what we perceive out of all of the data available to us - than reasoned argument about how to classify those objects. So, for example, there is a furry black creature lying here at my feet as I type this. I could classify the creature in any of the following ways of increasing specificity: thing - animate thing - animal - vertebrate - mammal - dog - mutt - labrador/pointer mix - one of my two dogs - Tia. For some reason, the cognitive schema I employ when thinking about this creature centers on "dog" - that is, if you asked me what is under my feet, that's what I would say "my dog," not "my animate thing" and not "Tia." I filter out everything else because it's not helpful. "There's a car blocking me"; not "there's a 2013 Mercedes S Class with a 289 cc engine blocking me" and not "there's a large metal object blocking me."

Posted by: Jeff Lipshaw | May 28, 2014 4:39:20 PM

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