Wednesday, March 17, 2010
A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from this psychological model, this Article then explores the unique role of formalism in patent doctrine. Advancing an information cost theory of Federal Circuit jurisprudence, this Article argues that formalistic patent doctrine mitigates the degree to which judges must engage technological subject matter. Formalism truncates difficult technical inquiries, thus helping to mediate the intersection of law and science.
The Article then identifies a countervailing trend in recent Supreme Court patent decisions. It is well-established that the Court has substantively narrowed patent rights. Less appreciated, however, is the Court’s systematic preference for contextually-sensitive, holistic standards over inquiry-truncating, formalistic rules. This so-called “holistic turn” promises to increase the degree to which lay judges must engage technologically complex subject matter. To address resulting cognitive burdens, this Article offers prescriptions for blending the economizing virtues of rules with the flexibility and contextual sensitivity of standards. It concludes by exploring the cultural differences of the Federal Circuit and the Supreme Court as well as their implications for patent doctrine.