The Natural Complexity of Patent Eligibility

Jacob S. Sherkow

New York Law School

March 1, 2014

Iowa Law Review, Vol. 99, p. 1137, 2014
Stanford Public Law Working Paper No. 2268180

It has long been assumed that the doctrine of patent eligibility’s prohibition of patents on “laws of nature,” “natural phenomena,” and “products of nature” rests on legalistic interpretations of those terms. But there is good reason to doubt this assumption. Since the doctrine’s inception, the Supreme Court has yet to provide any framework, formula, or factors explaining these “natural” terms. Rather, the Court has increasingly fixated on a list of scientific tropes, such as gravity, the heat of the Sun, and extracted metals, that it believes are true examples of “natural laws,” “phenomena,” and “products.”

An actual examination of scientific philosophy, however, demonstrates that these concepts are anything but true examples of “natural laws,” “phenomena,” and “products.” And one branch of scientific philosophy in particular, natural complexity, focuses on why such terms are ultimately unworkable today. This disconnect between patent eligibility’s appeal to science and natural complexity’s agnosticism of patent eligibility’s terms explains some of the problems patentable eligibility faces today in applying the terms “laws of nature,” “natural phenomena” and “products of nature” to current technologies.

Interestingly, the solution to these difficulties may lie in recognizing that the doctrine of patent eligibility is, itself, complex: that rather than breaking down its analysis into cognitively easier subparts, it operates under the burden of a complicated and unworkable whole. Solutions to analogous scientific problems revolve around the strategies of “decomposition” and “localization,” i.e., “decomposing” a system into cognitively manageable subparts and “localizing” those subparts to functions of the overall system. In this way, researchers can develop a coherent description of the system as a whole. While this may appear inapplicable to the law, other complex areas of jurisprudence use this methodology to break down high-order, generalized questions into separate “factors” or “prongs” that map to the law’s substantive purposes. Harnessing decomposition and localization for patent eligibility — rather than attempting to resolve the grander question of what a “natural law” is — may go a long way in developing a coherent, legalistic, and yet simple framework to the century-and-a-half old doctrine.

Number of Pages in PDF File: 60

Keywords: patent, nature, law, phenomena, product, complexity, decomposition, localization, multiprong, multifactor, science, technology, intellectual property

JEL Classification: K11, K19, K39, O34, K00

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Date posted: May 22, 2013 ; Last revised: March 3, 2014

Suggested Citation

Sherkow, Jacob S., The Natural Complexity of Patent Eligibility (March 1, 2014). Iowa Law Review, Vol. 99, p. 1137, 2014; Stanford Public Law Working Paper No. 2268180. Available at SSRN: https://ssrn.com/abstract=2268180

Contact Information

Jacob S. Sherkow (Contact Author)
New York Law School ( email )
185 West Broadway
New York, NY 10013
United States
212.431.2355 (Phone)
HOME PAGE: http://www.nyls.edu/faculty/faculty-profiles/faculty_profiles/jacob-s-sherkow/
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