Document Type
Article
Publication Date
2004
Abstract
This short essay critically evaluates the current proposals, most closely associated with Dan Burk and Mark Lemley, that the patent law should increasingly become technology-specific - that is, that the law should reflect different rules for different technological areas or industries. I make three points. The first is to point out that descriptive claims of a fundamental technological-exceptionalism (what I call "macro-exceptionalism") in the patent law are not well supported, once one sets aside the small factual variability ("micro-exceptionalism") built into the legal standards. Second, using empirical data from the development of claim construction jurisprudence and the patterns of en banc proceedings at the Federal Circuit, I argue that the major trends in the patent law run directly counter to macro-exceptionalist claims. Finally, in considering the public policy issues raised by the calls for a judicially created technological-exceptionalism, I conclude that the most successful approach is, indeed, exactly backwards of that suggested by the proponents of technological-specificity in the patent law.
Keywords
Patents, Technological Specificity, Exceptionalism
Publication Title
Case Western Reserve Law Review
Repository Citation
Wagner, Polk, "Exactly Backwards: Exceptionalism and the Federal Circuit" (2004). All Faculty Scholarship. 73.
https://scholarship.law.upenn.edu/faculty_scholarship/73
Publication Citation
54 Case W. Res. L. Rev. 749 (2004).