In thinking about the range of issues we confront in empirical legal research, including research into patent law and policy, it is well to begin with fundamentals. There are three inquiries that define what scholarship into the human condition cares about—knowledge, conduct, and governance. Typically, scholarship regarding patent law and policy is concerned with conduct—who has the right, and under what circumstances, to make, use, or sell an invention that has been given recognition under the Patent Act (more technically, who has the right to exclude others from making, using, or selling the invention)? By contrast, empirical legal scholarship, including empirical studies of patent law, involves the process by which human knowledge is obtained—what we know and how we know it. And when called upon to adjudicate patent disputes, courts necessarily engage both the knowledge and conduct questions in the context of governance, read broadly.
The question of conduct, what is permitted or prohibited under the patent laws, is a subject of much learning, but it is not the question to be addressed here. Rather, our concern here is the question of knowledge, including some of the basic issues empirical scholarship confronts. And, because it is empirical studies of law that are our subject of inquiry, a relevant question is how, if at all, does empirical legal scholarship relate to the method of governance, and in particular to the judicial process and the ways in which judges decide cases?