Abstract

http://ssrn.com/abstract=1871148
 
 

Footnotes (64)



 


 



Formalism, Realism, and Patent Scope


Tun-Jen Chiang


George Mason University School of Law


IP Theory, Vol. 1, No. 2, pp. 88-99, 2010
George Mason Law & Economics Research Paper No. 11-30

Abstract:     
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.

Number of Pages in PDF File: 13

Keywords: CCPA, Court of Appeals, Customs Appeals, extra-legal tools, generalist judges, incentives, Jeffrey Lefstin, later-arising technology, legal, logic, Peter Lee, policy balancing, precedent, Richard Nelson, Robert P. Merges, Ronald Dworkin, rules, self-contained discipline, sub rosa, trademark, USPTO

JEL Classification: K11, O34

Accepted Paper Series


Download This Paper

Date posted: June 24, 2011  

Suggested Citation

Chiang, Tun-Jen, Formalism, Realism, and Patent Scope. IP Theory, Vol. 1, No. 2, pp. 88-99, 2010; George Mason Law & Economics Research Paper No. 11-30. Available at SSRN: http://ssrn.com/abstract=1871148

Contact Information

Tun-Jen Chiang (Contact Author)
George Mason University School of Law ( email )
Feedback to SSRN


Paper statistics
Abstract Views: 526
Downloads: 59
Download Rank: 215,865
Footnotes:  64
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.406 seconds