Irrational Science Breeds Irrational Law

• Publication year: 2018

Irrational Science Breeds Irrational Law

Caleb Small

IRRATIONAL SCIENCE BREEDS IRRATIONAL LAW

Abstract

Current jurisprudence regarding the subject matter eligibility requirement for patents relies upon outdated assumptions in both philosophy of science and the scientific endeavor itself. In relying upon these assumptions, the Supreme Court, especially in its recent decisions covering biotechnology and computer software, has given the arguably more technocratic lower federal court judges a confusing and unworkable test. Scholars have proposed new approaches on subject matter eligibility, urging courts to revisit and revitalize other areas of the patentability analysis: utility and the written description requirement. While these arguments adeptly characterize some solutions to the current predicament, they do so without utilizing the full armament available to them.

This Comment proposes that by instead viewing the problems with modern jurisprudence as a misunderstanding in the realm of philosophy of science, the lens provided by Thomas Kuhn in The Structure of Scientific Revolutions clarifies such arguments against the Supreme Court's "inventive step" analysis. Kuhn's paradigm model of scientific revolutions gives further precision to what a patent should be, what the patent system should do, and where the Court's problems with subject matter eligibility go wrong. Essentially, the scientific endeavor is not and has never been linear. Instead, each discovery within a paradigm, such as Newton's Laws of Motion, serves a purpose within that paradigm, but is incommensurate with earlier or later paradigms, such as Einstein's General Relativity. Therefore, there are no "laws of nature" with which the Supreme Court concerns itself. There is only empirical data, rising out of and belonging solely within the paradigm from which it arose.

Application of such a theory to modern biotechnology and computer software patents shows that an exceedingly fine subject matter eligibility filter is unworkable. Instead, this Comment argues that the Supreme Court should discard the inventive step model from the last several years and focus, as some lower courts have already done, on using other areas of the patentability analysis, such as the utility and the written description requirements. These latter areas better approximate the scientific endeavor because they align themselves more closely with Kuhn's descriptive model, focusing on the useful problem-solving roles of scientists.

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Introduction..............................................................................................891

I. Current Patent Law Jurisprudence...........................................893

A. Patentable Subject Matter ......................................................... 893

1. Background Until Alice and McRO.................................... 894
2. Alice and McRO: The Fight over Algorithms..................... 896

B. Utility ......................................................................................... 899
C. Written Description and Enablement ........................................ 901

II. Why an Irrational Science Better Describes the Scientific Endeavor.......................................................................902

A. Progression in Philosophy of Science from Pragmatism to Kuhn and Feyerabend ............................................................... 902

1. Pragmatism ......................................................................... 902
2. Falsificationism ................................................................... 903

B. Kuhn 's Revolution and Feyerabend's Anarchy......................... 904

1. Thomas Kuhn's Scientific Revolution.................................. 904
2. Paul Feyerabend and the Revolt Against Method............... 906

III. Drawing the Connection Between Kuhn and Recent Patent-Law Jurisprudence...........................................................907

A. Patent Law and Paradigms ....................................................... 908
B. Everything Is Patentable for Kuhn ............................................ 909
C. The Audience of a Paradigm ..................................................... 913
D. Application of Paradigm Science to Alice and Post-Alice Decisions ................................................................................... 915

Conclusion............................................................................................917

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Introduction

The last twenty or thirty years have revealed an ongoing identity crisis for patent law. Some have correctly labeled this a problem with "audience"¹ —that patent law jurisprudence has forgotten the intended target of clear rules. Yet this development is unsurprising. Patent law is a constitutionally based² system devised by a democratically elected Congress and interpreted by indirectly appointed life-term officials with no required background in the technical arts, aimed at promoting innovation among disparate types of research entities. It is therefore difficult to expect clear communication or rules in such an arena, considering not only the sheer number of players involved, but the diverse interests and backgrounds brought to the table.

However, developments in the philosophy of science in the 1900s have given some clarity as to why this disconnect occurs and how it might be fixed. The most prominent development was the widespread recognition that simple scientific realism³ —the fairly widespread notion that the goal and nature of science is to uncover static truths about the physical world—is wrong, both prescriptively and descriptively.⁴ Connected to this revolt against what has been called the "naive view,"⁵ some philosophers of science have deemed the scientific endeavor itself to be irrational; the scientific method is a normative construction with little descriptive purpose.⁶ Not only is the scientific method

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virtually nonexistent in practice, but its consistent presence in the popular view of science has resulted in poorly devised law in areas including evidentiary standards,⁷ administrative agency regulation,⁸ and patents.

The arena most harmed by this inaccurate understanding of the scientific endeavor is patent law's subject matter eligibility criterion, which describes as patentable "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement."⁹ Courts have turned many corners on what constitutes these patentable subjects, and recent jurisprudence has engendered confusion for both patentees and the patent office, especially in the fields of biotechnology and software.¹⁰

This Comment argues that patentable subject matter jurisprudence has been significantly harmed by naive scientific realism, which insists upon, for example, the existence of true laws of nature and the infallibility and universality of the scientific method. Using the framework provided by Thomas Kuhn and other modern philosophers of science, this Comment examines several recent arguments for shifting courts' focus on patentable subject matter toward other eligibility criteria, such as the written description and utility requirements. The "eligibility-as-king"—focusing on subject matter restrictions over other patent criteria—trend has become restrictive and assumes a naive view of scientific progress. This Comment concludes that by loosening the subject matter eligibility restriction and relying upon the other eligibility criteria, the jurisprudence can better match the scientific endeavor and resolve confusion in lower courts.

This Comment proceeds in three parts. Part I discusses current patent law jurisprudence, focusing on the increasing reliance upon subject matter eligibility by the Supreme Court, the wasting of the utility analysis, and the growing strength of the written description analysis. Part II summarizes

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developments in the philosophy of science which have created a growing consensus that science does not proceed linearly and natural laws are paradigm-dependent. Part III presents recent arguments calling for a shift away from subject matter eligibility and towards utility and written description requirements, and concludes that the developments in philosophy of science particularly inform the necessary changes in patent law jurisprudence.

I. Current Patent Law Jurisprudence

For an invention to be patent-eligible, the applicant must demonstrate to the U.S. Patent and Trademark Office (PTO) that the potential patent is (1) of the subject matter that ought to be covered by the patent system, (2) useful, (3) nonobvious to persons skilled in the art, (4) novel, and (5) sufficiently described and enabled by a written description.¹¹ Recently, advancements in biotechnology and information technology have created issues for the subject matter criterion, leading to confusing precedents and unpredictable judicial results.¹² Before discussing how the current law has become so muddled, it is first necessary to describe the history of three of the eligibility requirements. First, and most importantly to this discussion, the Court's focus on the subject matter eligibility criterion can be traced back to the 1970s, where the onset of biotechnology first created issues in determining what should classify as a true invention. Second, this Part discusses the utility requirement, as it serves a potential role in solving the problems with subject matter eligibility. Finally, this Part explores the written description requirement as a solution to issues wrought by current subject matter eligibility jurisprudence.

A. Patentable Subject Matter

For the first two hundred years of the patent system, answering the question "what should be patentable?" was more straightforward: light bulbs,

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car engines, cotton gins, and other mechanical inventions are clearly inventive applications of known science. But recently, with...