Sunstein on making dumb groups smarter
In the IPBiz post titled
CAFC in Cuozzo: § 314(d) prohibits review of the decision to institute IPR even after a final decision, LBE noted
Chevron vs. NRDC, a favorite of Professor Sunstein when at
UChicago Law, arose:
Because Congress authorized the PTO to prescribe
regulations, the validity of the regulation is analyzed
according to the familiar Chevron framework. See United
States v. Mead Corp., 533 U.S. 218, 226–27 (2001); Wilder
v. Merit Sys. Prot. Bd., 675 F.3d 1319, 1322 (Fed. Cir.
2012). Under Chevron, the first question is “whether
Congress has directly spoken to the precise question at
issue.” Chevron, U.S.A. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984); accord Cooper, 536 F.3d at 1337
(quoting Hawkins v. United States, 469 F.3d 993, 1000
(Fed. Cir. 2006)). If the statute is ambiguous, the second
question is “whether the agency’s interpretation is based
on a permissible construction of the statutory language at
issue.” Cooper, 536 F.3d at 1338 (quoting Hawkins, 469
F.3d at 1000).
Professor Sunstein is now at Harvard, and published an interesting
article in the December 2014 issue of the Harvard Business Review, titled
Making Dumb Groups Smarter .
Sunstein cites to Aristotle as to each individual bringing to the group
his share of goodness. As to errors of the group, Sunstein brings up
--informational signals-- and --reputational pressures.--
Although the topic of --jury deliberations-- arose, there was no discussion
of appellate courts having more tribunal members than district courts, another
nod to the power of the many over the one.
This matter is relevant to the Supreme Court decision in Teva v. Sandoz, relating
to the deference the appellate court gives to the fact-finding of the district
court in patent matters. The Supreme Court rendered a "split the baby" decision,
wherein the Federal Circuit owed less deference to intrinsic evidence than
to extrinsic evidence. Not suprisingly, post - Teva decisions have been finding
cases resolved on intrinsic evidence. It will be of note to see the CAFC review
of Gevo v. Butamax.
Returning to Professor Sunstein and Chevron, the Cuozzo case offers an interesting question: can a clearly erroneous interpretation be a permissible interpretation?
When Congress spoke in the Innovation Act, Congress made clear that BRI did not apply in IPRs. And the reasons it did not apply were apparent from the intent of Congress, as the dissenting Judge Newman made clear.
Returning to the matter of making dumb groups smarter, Sunstein seems to rely on what some might term sociology evidence, and one recalls Chicago Sunstein had a low opinion of such.
As a practical matter, groups in small start-ups tend to align with the founder, with the "employment interest" probably stronger than the reputational interest. Wise founders may accept corrective observations. Most founders likely do not. And, of a different matter, recall the departure of Jobs from Apple.
**As to crowdsourcing, from medium.com, How a Lone Hacker Shredded the Myth of Crowdsourcing :
All the motivation generated by weeks of good PR, a fun task and a smart financial incentive scheme evaporated in the face of attacks by a single person lasting, in total, no more than a couple of hours. The researchers warned, “Our results raise caution in the application of crowdsourced problem solving for sensitive tasks involving financial markets and national security.” DARPA might have already reached the same conclusion: the agency has issued no further crowdsourcing challenges since 2011. The agency did not respond to my request for an interview about how the Shredder Challenge attacks might have shaped their decisions.