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Posted by: Threejack Member Level  Date: Saturday, October 21, 2006 9:33:21 AM
In reply to: None Post # of 14197  Send a link via email Share on Facebook Tweet this post
20-20 Hindsight


Found this entry at the Patent Prospector blog. The underlying article is fascinating as well. Here is a snip; emphasis mine.

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October 19, 2006
20/20 Take 2

While others rattle on with their own bias, Professor Gregory Mandel of Albany Law School attacks hindsight bias with empirical research and well-reasoned analysis. "Humans are cognitively unable to prevent knowledge gained through hindsight (here, that the invention was achieved) from impacting their analysis of past events, as required for the proper ex ante analysis. Because of this hindsight bias, individuals routinely overestimate the ex ante predictability of events after they have occurred." Mandel's paper is crucial reading for anyone not blinded by their own bias to hindsight.

Herein are just excerpts. Warm up with this, then read the article at your leisure.

Mandel lays out the hindsight problem, unmitigated by the current regime, with those on the KSR side, wishing to gut the suggestion test, full of, at best, wishful thinking.

The hindsight effect is familiar to all—consider the widespread adages “hindsight is 20/20” or “Monday morning quarterback.” These sayings are based on a now well-proven fact: once outcome information is known, people are cognitively incapable of preventing that information from influencing their understanding of past events. As a result, individuals consistently (and unconsciously) exaggerate what could have been anticipated in foresight and not only tend to view what occurred as having been inevitable, but also as having appeared relatively inevitable beforehand.

The human incapacity to ignore hindsight information has been well-studied and documented in a variety of contexts. The hindsight bias has been confirmed in over one-hundred studies of both lay and expert judgment in both laboratory and real world settings in many fields. The hindsight bias has been verified in legal decision as well. Several mock jury studies in the tort and search and seizure contexts demonstrated significant hindsight effects in judging negligence and probable cause, respectively.

The dilemma that the hindsight bias poses for patent law is severe... This hindsight effect creates substantial difficulty for patent law. Judges, jurors, and patent examiners will routinely view inventions that were actually non-obvious at the time of invention as instead having been obvious, because the invention is known to the decision-maker at the time the non-obvious determination is made in hindsight. The first study in the current line of research confirmed this effect.

http://www.patenthawk.com/blog/archives/2006/10/2020_take_2.html#more

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=928662

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Imagine the "hindsight effect" will influence the Patent Examiner who is assigned to re-examine several Rambus patents shortly, the '916 and '120 among them. Was the EPO re-examination decision a few years back influenced by this phenomenon as well??

Just my opinion.

Threejack

P.S. on an unrelated issue, perhaps this explains why TA is so seductive : )

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