Posted by Social Science Research Network
The Supreme Assimilation of Patent Law Peter Lee (University of California)
Abstract: Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. Focusing on this tension, this Article explores an underappreciated descriptive theory of recent Supreme Court patent jurisprudence. Commentators observe that the Court has reined in expansive Federal Circuit patent doctrine and established holistic standards to replace bright-line rules. This Article augments these prevailing interpretations by exploring another. Building upon and significantly extending previous scholarship, it argues that the Supreme Court’s recent patent jurisprudence reflects a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles. In a variety of areas including appellate review of lower courts and agencies, jurisdiction, remedies, and the award of attorney’s fees, the Federal Circuit has developed rather exceptional doctrine for patent cases. However, the Supreme Court has consistently eliminated such exceptionalism, bringing patent law in conformity with general legal standards. Among other observations, the Supreme Court’s intervention reveals its holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. The Article concludes by arguing in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, this Article argues that unique features of patent law — particularly the role and expertise of the Federal Circuit — justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.
Featured News
UK Probes Lindab’s Acquisition of HAS-Vent Amid Fears of Market Monopoly
Apr 28, 2024 by
CPI
Shein Faces EU Regulations Over User Data
Apr 28, 2024 by
CPI
Google Fights Back Against US Antitrust Lawsuit
Apr 28, 2024 by
CPI
US Homeland Security Establishes Blue-Ribbon Board with Tech CEOs to Advise on AI
Apr 28, 2024 by
CPI
FTC Accuses Amazon Executives of Using Disappearing Messaging Apps to Conceal Evidence
Apr 28, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Economics of Criminal Antitrust
Apr 19, 2024 by
CPI
Navigating Economic Expert Work in Criminal Antitrust Litigation
Apr 19, 2024 by
CPI
The Increased Importance of Economics in Cartel Cases
Apr 19, 2024 by
CPI
A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements
Apr 19, 2024 by
CPI
Information Exchange In Criminal Antitrust Cases: How Economic Testimony Can Tip The Scales
Apr 19, 2024 by
CPI