The Yale Law Journal

October 2010

Patent Law and the Two Cultures

Peter Lee

120 Yale L.J. 2 (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 laypersons adopt heuristics and defer to expertise to mitigate these burdens. Drawing from this psychological model, the Article then explores the unique role of formalism in patent doctrine. Advancing an information-cost theory of Federal Circuit jurisprudence, it argues that formalism limits and streamlines judicial engagement with technology. 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. In addition to substantively narrowing patent rights, the Court is systematically rejecting formalistic rules in favor of holistic standards. This so-called holistic turn promises to increase judicial engagement with technology. 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 the implications of those differences for patent doctrine.