Lack of capacity means even attempts to create clear rules create enormous uncertainty and litigation floods

A related concern, framed most prominently by Andy Coan, is that courts have difficulty crafting rules that can be applied cleanly and reliably.312 Any lack of clarity, or the choice to employ standards rather than rules, risks overwhelming the courts’ dockets with litigation by parties who are confused, motivated by strategic considerations, or both.313 The Supreme Court’s jurisprudence on patentable subject matter may be an example of this failing. While the Court has set out three concise categories of exceptions to patentable inventions—laws of nature, natural phenomena, and abstract ideas314—those rubrics have defied easy explication. The Court has had to return repeatedly to each category in an effort to provide definitional rigor to them and has thus far failed to craft clear tests for what is in or out of bounds in terms of subject matter. Thus, even if the federal courts possessed the expertise for detailed decision making about patent and copyright policy —and perhaps the Federal Circuit might—they lack the capacity to do so at the necessary scale.315 Only the more political branches possess the personnel to process these problems.