Instrumentalism at the Federal Circuit

St. Louis University Law Journal, Vol. 56, p. 419, 2012

46 Pages Posted: 1 Mar 2011 Last revised: 3 Jan 2015

See all articles by Lucas Osborn

Lucas Osborn

Campbell University Law School

Date Written: March 21, 2012

Abstract

Since 2001, the Supreme Court has taken an increased interest in patent law, and in each case it decided between 2002-2010, it reversed the Federal Circuit’s patent-related decision. In addition, the Supreme Court has at times been vocally critical of the Federal Circuit’s failure to follow Supreme Court precedent. How has the Federal Circuit responded to this intervention? This Article asserts that the Supreme Court’s increased attention has changed the Federal Circuit’s rhetoric, but not its actions. While the Federal Circuit has responded by discussing Supreme Court precedent in its recent patent decisions, a critical analysis reveals that the Federal Circuit hyper-interprets that precedent to appear to require the Federal Circuit’s policy-driven outcome, when in reality the precedent is not so confining. The Federal Circuit hyper-interprets Supreme Court precedent out of a desire for certainty and relatively outcome-determinative rules. Yet, rather than discuss its desire for certainty and the effects of its decisions, the Federal Circuit has minimized policy discussion. The Federal Circuit’s hyper-interpretation of precedent leads to opinions that lack full legitimacy and its reticence toward policy discussion increases the chances that the tests it adopts are sub-optimal.

Keywords: Patent, Federal Circuit, Supreme Court, Formalism, Instrumentalism, Rules, Standards, Bilski, Ariad, Abbott Labs, Patentable Subject Matter, Eligible Subject Matter, Written Description, Product-by-Process

Suggested Citation

Osborn, Lucas, Instrumentalism at the Federal Circuit (March 21, 2012). St. Louis University Law Journal, Vol. 56, p. 419, 2012, Available at SSRN: https://ssrn.com/abstract=1773141

Lucas Osborn (Contact Author)

Campbell University Law School ( email )

27603
United States
919-865-4673 (Phone)

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