Semiotics 101: Taking the Printed Matter Doctrine Seriously

Kevin Emerson Collins | 85 Indiana Law Journal 1379 (2010)

The printed matter doctrine is a branch of the section 101 doctrine of patent eligibility that, among other things, prevents the patenting of technical texts and diagrams. The contemporary formulation of the doctrine is highly problematic. It borders on incoherency in many of its applications, and it lacks any recognized grounding in the Patent Act. Yet, despite its shortcomings, courts have not abandoned the printed matter doctrine, likely because the core applications of the doctrine place limits on the reach of the patent regime that are widely viewed as both intuitively “correct” and normatively desirable. Instead of abandoning the doctrine, courts have marginalized it. They have retained the substantive effects of the printed matter doctrine but avoided analyzing it whenever possible. This Article adopts a different approach: it takes the printed matter doctrine seriously. It reinterprets the printed matter doctrine as the sign doctrine, revealing both the conceptual coherence hidden in the doctrine’s historical applications and the doctrine’s as-of-yet unnoticed statutory grounding. The key to this reconceptualization is recognizing that the printed matter doctrine is in effect already based on semiotic principles. The printed matter doctrine purports to be about information, but it is actually about signs. It purports to curtail the patenting of worldly artifacts, but it actually curbs the reach of patent protection into mental representations in the human mind. To support these arguments, this Article offers a course in “Semiotics 101”: a semiotics primer strategically targeted on the principles that prove to be relevant to the section 101 doctrine of patent eligibility. This Article also examines one unexpected consequence of taking the printed matter doctrine seriously and adopting a semiotic framework. It reconsiders the patentability of a class of software inventions which are defined here as “computer models.” As a matter of semiotic logic, the routine patentability of newly invented computer models under the contemporary patent eligibility doctrine cannot be reconciled with the categorical unpatentability of mechanical measuring devices with new labels under the printed matter doctrine.