Patent Law and the Two Cultures

Article excerpt

ARTICLE CONTENTS

INTRODUCTION

I. TECHNOLOGY AND COGNITIVE BURDENS IN THE PATENT SYSTEM
   A. Generalist Judges and Technological Anxiety
   B. Traditional Proposals To Ameliorate Cognitive Burdens

II. THE PSYCHOLOGY OF TECHNOLOGICAL ENGAGEMENT: INFORMATION
   COSTS AND THE COGNITIVE MISER

III. AN INFORMATION-COST THEORY OF FEDERAL CIRCUIT PATENT
   DOCTRINE: FORMALISM AND TECHNOLOGICAL ENGAGEMENT
   A. Claim Construction
   B. Prosecution History Estoppel
   C. Nonobviousness
   D. Remedies
   E. Summary

IV. THE SUPREME COURT'S HOLISTIC TURN
   A. The Supreme Court's Return to Patent Law
   B. The Standard Interpretation: Constraining Patent Rights
   C. A New Interpretation: Holism and Contextual Engagement
   D. Festo: A Flexible Approach to Prosecution History Estoppel
   E. KSR: An Expansive Approach to Nonobviousness
   F. eBay: An Equitable Standard for Injunctive Relief
   G. Additional Evidence of the Supreme Court's Holistic Turn

V. DOCTRINAL INFORMATION-COST EXTERNALITIES: IMPLICATIONS AND
   PRINCIPLES FOR MITIGATION
   A. Clearly Delineating and Structuring New Patent Doctrine
   B. Guiding Technological Inquiries Through Examples and
      Explanations
   C. Objections and Responses

VI. THE TWO CULTURES REFASHIONED: THE FEDERAL CIRCUIT AND THE
   SUPREME COURT

CONCLUSION

"Patent litigation is like the neurosurgery of litigation: it is hard scientifically and it is hard legally." (1)

INTRODUCTION

The Hon. James F. Holderman, Chief Judge of the Northern District of Illinois, sees a fair number of patent cases. As such, he is no stranger to advanced technologies, having presided over cases involving wireless portable communication devices, (2) anti-theft systems, (3) and wavelength division multiplexed optical communication systems. (4) Recently, he had this to say about patent disputes:

   Patent litigation is different.... It is more complicated, more
   time-consuming and more mentally taxing because typically the
   patent being litigated is a successful advancement of some science
   or technology. So, the judge has to understand that background just
   to get to the factual basis of the problem and then deal with legal
   aspects. (5)

These challenges form the subject of this Article.

As a general matter, lawyers and science don't mix. (6) This fact of legal life reflects a broader epistemological schism best captured in an influential 1959 lecture by C.P. Snow, entitled "The Two Cultures." (7) By involving "culture," Snow did not refer to ethnic, religious, or national groups. Rather, he sought to describe a deep intellectual divide between literary and scientific cultures. Reflecting on his background as an author and physicist, he warned of a dangerous "gulf of mutual incomprehension" between the liberal arts and sciences. (8) Although Snow's remarks arose within a particular social and historical context, (9) his thesis has become an enduring metaphor for the challenges of intellectual specialization, (10) and I invoke it here in this sense. Snow's dichotomy is, of course, a gross generalization. (11) But in its stark duality, the "Two Cultures" captures an anxiety readily apparent to many lawyers when confronting scientific complexity. (12) While Snow did not directly address patent law, his metaphor is highly salient to the patent system--a realm where law and science intersect. (13)

Drawing on the "Two Cultures," this Article explores challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. Much patent scholarship focuses on the important question of how to structure exclusive rights to maximize innovation. (14) However, this Article takes a different approach, building on a rich literature addressing the institutional dimensions of patent adjudication, which are critical to a well-functioning patent system. (15) It proceeds on the premise that no matter how elegantly policymakers craft patent law, if generalist judges lack the capacity to administer it, the patent system cannot fulfill its objectives. …