Abstract
To protect creations of the mind, the law needs to understand the mind. Thankfully, the rapidly emerging field of neuroscience provides an invaluable glimpse into the inner workings of the human brain. Now that scientific instruments provide a window into the living brain, it is time to reexamine the way intellectual property law decides the outcomes of infringement lawsuits.
Critically examining neuroscience in the context of the law helps to answer the most fundamental question in an intellectual property lawsuit: Was there infringement? A judicial hesitancy to understand the thought processes of artists and creators results in relying on the viewpoint of an expert, consumer, or ordinary reasonable person. This Note focuses, in turn, on the primary audience for determining infringement in patent, trademark, and copyright litigation. A brief overview of the field of neuroscience and scientific technologies facilitates the later discussion on how neuroscientific advancements can fill in the gaps for each type of intellectual property’s audience, which is key to determining infringement. Further, it addresses the hurdles of this interdisciplinary endeavor by acknowledging cost considerations and fundamental differences between neuroscience and the law.
This Note ultimately advocates that even the seemingly most well-rounded approach to audience in deciding infringement lawsuits stands to benefit from the consideration of neuroscientific understandings. Exclusively relying on either an expert, consumer, or ordinary reasonable person fails to ascertain key elements within patent, trademark, and copyright law. Neuroscience’s unique insight into the creative process can revive the long-diminished role of patent law’s person having ordinary skill in the art. Understanding the consumer brain facilitates a better utilization of the judicial test to discern the likelihood of confusion in trademark infringement suits. Finally, neuroscientific understandings of the expert brain can remedy the circuit split on determining substantial similarity in a copyright infringement suit. Each proposed method of integrating neuroscience into intellectual property adheres to the ultimate goal: to protect creations of the mind. It is time to give neuroscience its due diligence by placing the brain in the courtroom.
Recommended Citation
Madyson Kent, The Brain Is in Your Court: Evaluating Intellectual Property Infringement Audience Through the Lens of Neuroscience, 81 Wash. & Lee L. Rev. 1257 (2024).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol81/iss3/12