Faculty Journal Articles and Book Chapters
Formalism and Antiformalism in Patent Law Adjudication: Precedent and Policy
In recent years law professors have unleashed withering criticism on the United States Court of Appeals for the Federal Circuit for overlooking the value of policy-guided analyses of patent law and instead engaging in formalistic parsing of precedent. The Supreme Court, by contrast, has received more mixed reviews but ultimately is viewed as an antiformalist alternative to the Federal Circuit. In this Article, I reconsider the role of the Federal Circuit as an intermediate appellate court with exclusive jurisdiction over appeals in patent cases in analyzing and expressing policy related to patent law. After cataloging the views of Federal Circuit judges and academic critics regarding the value of policy-based analysis in patent cases, the Article provides a close analysis of the track record of both the Federal Circuit and the Supreme Court regarding expression of policy-based justifications for legal doctrines in patent law. Significantly, this analysis challenges views of both the academic critics as well as the Federal Circuit judges. This Article then examines the importance of the Federal Circuit and its judges engaging actively in the ongoing policy debate at the Supreme Court regarding various patent law doctrines, ultimately taking and defending the position that the Federal Circuit and its judges should engage in a healthy policy discourse with the Supreme Court and suggesting several specific ways the court and its judges might better engage in this discourse.