(Mostly) Against Exceptionalism

Document Type

Article

Publication Date

2003

Abstract

This Essay delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's Biotechnology's Uncertainty Principle, the piece notes that the basic question posed by that article - whether the patent law is "technology-specific" - is a relatively easy question, given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which the Essay refers to as TYPE I exceptionalism) is both extant and easily justifiable for a legal regime directed to technology policy. It is a broader sort of exceptionalism (TYPE II) that is far more troublesome, implying a role for the patent law in quite detailed policy judgments, such as the optimal breadth for biotechnological patents (as Burk and Lemley suggest). The Essay offers a variety of reasons that TYPE II exceptionalism is unwarranted, and indeed, notes that a primary claim of Burk and Lemley's - that the Federal Circuit has grossly missed the mark in its (purportedly) exceptionalist approach - previews the sort of problems created by pursuing technological exceptionalism in the patent law.

Keywords

patent law, technologically specific innovation policy, Federal Circuit, adaptation versus prescription, micro-specificity, macro-specificity, PHOSITA standard, patent vs. biotechnological jurisprudence

Publication Title

Advances in Genetics

Publication Citation

50 Advances in Genetics 367 (F. Scott Kieff ed., 2003)

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