The descriptive insights in Patent Law and the Two Cultures are interesting and compelling. The prescriptive proposal, however, could be developed further. Lee is not the first scholar to argue that the Supreme Court should make its tests more workable, and it is not obvious what distinguishes patent law from other complex areas of adjudication. But Lee does provide examples, such as from Graham and eBay, of areas where the Court has provided somewhat more concrete guidance, and he argues that the Court should make more use of illustrative examples. He also does a nice job responding to potential counterarguments to this proposal. Although somewhat long, the piece is beautifully written and carefully footnoted; Lee is careful to acknowledge where his ideas fit into prior scholarship in the field. Even generalist readers (or lay judges) should be able to enjoy this piece.
Wednesday, February 2, 2011
Peter Lee: Patent Law and the Two Cultures
Posted by Lisa Larrimore Ouellette
I'll start my patent scholarship blog with an article I helped edit for the Yale Law Journal this past fall: Patent Law and the Two Cultures by Professor Peter Lee (at U.C. Davis Law). The article notes that decisionmakers often rely on heuristics and deference to experts when confronted with technical complexity, which "raise[s] the provocative question of whether the 'cognitive miser' model is reflected in the patent system," where lay judges often are faced with complex patent disputes (Part II). Lee then describes the formalism of the Federal Circuit in terms of heuristics that lower information costs (Part III), and he sees the "holistic turn" of the Supreme Court as producing "'information consuming' standards [that] will increase technological engagement and attendant cognitive burdens for district judges" (Part IV). After laying out this descriptive theory, Lee offers a prescriptive suggestion: the Supreme Court should recognize the costliness of its holistic standards and should make rules that are "enabled" (borrowing a principle from patent law) such that lay district judges actually can apply them (Part V).