Patent Law and the Two Cultures

By Lee, Peter | The Yale Law Journal, October 2010 | Go to article overview

Patent Law and the Two Cultures


Lee, Peter, The Yale Law Journal


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Patent Law and the Two Cultures
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.