Scientific Complexity & Patent Eligibility

Scientific Complexity & Patent Eligibility
Jacob S. Sherkow
The doctrine of patent eligibility, which prohibits the patenting of “laws of nature, natural
phenomena, and abstract ideas,” has existed in one form or another for over 150 years. Yet little
work has assessed whether the meanings of these terms have changed during that time. This
paper analyzes how a consequence of scientific revolutions—the awareness of scientific
“complexity”—makes the terms “laws of nature” and “natural phenomena” vague and illusory,
and therefore unsuitable to determine patent eligibility.
The scientific revolutions of the twentieth century gave rise to the recognition of
scientific “complexity,” i.e., an increase in the number and variety of nature’s constitutive
elements and the “elaborateness of their interrelational structure.” This complexity has forced us
to replace concrete “laws” with probabilities, narrowed our ability to identify “phenomena,” and
raised unresolved philosophical questions about the nature of scientific knowledge. The doctrine
of patent eligibility, however, has developed in ignorance of complexity. Although it began
simply as a product of statutory interpretation and a check against patenting “principles,” i.e.,
“abstractions,” the doctrine now prohibits any patent application encompassing “laws of nature,
natural phenomena, or abstract ideas.” Since this shift, there has simply been no consistent
account of what these terms mean or how they are supposed to function.
This disconnect between scientific theory and patent law poses several problems. First,
the terms “laws of nature” and “natural phenomena” are definitionally unworkable. Second,
because these terms are inherently narrow, this weakens the eligibility’s primary normative
justification—that “whole fields” of research will be preempted otherwise. Third, the use of
vague terms like “laws of nature” marginalizes the importance of claim language. Fourth, courts
have used these terms in an impermissibly technology-specific way. And fifth, the flexibility of
the test has been improperly used to import judges’ policy preferences about the patent system.
These problems could be alleviated using a technique currently used to solve
scientifically complex problems: decomposition and localization. Decomposition and
localization strive to break down a complex system into its constituent parts and “localize” each
part to a goal or goals of the system. This seems to already occur in the law through the use of
objective, multiprong tests, which break down a complicated legal analysis into several
“prongs,” each of which localizes to several of the law’s normative goals. I propose one such
multiprong test for patent eligibility in contrast to other elegant, descriptive tests previously