Working Paper No. 11-30:
Formalism, Realism, and Patent Scope
Date Posted: June 2011
Abstract (below) | Full text (most recent) on SSRN
Much recent literature has characterized the Federal Circuit’s patent scope jurisprudence as “formalistic.” Another extensive set of literature has characterized the Federal Circuit’s patent scope jurisprudence as wildly indeterministic. If formalism is defined as decision-making according to predictable rules, then these two claims contradict each other.
In this Essay, I argue that the Federal Circuit is not a formalistic court in practice, though like every other court it uses formalistic rhetoric. But such rhetoric only masks the reality that current patent scope doctrines allow an enormous amount of judicial discretion; discretion that the Federal Circuit has pragmatically exercised.