The Supreme Court's Complicity in Federal Circuit Formalism

Abstract:     
This Essay was prepared to celebrate the 20th Anniversary of the Santa Clara Computer and High Technology Law Journal and, particularly, the influence of Donald Chisum's seminal article from this journal, The Scope of Protection for Patents After the Supreme Court's Warner-Jenkinson Decision: The Fair Protection-Certainty Conundrum, 14 Santa Clara Computer & HIgh Tech L. J. 1 (1998).

In this Essay, I explore the role the Supreme Court played in facilitating the Federal Circuit's embrace of bright-line, formalistic rules. This Essay will first indentifies the various ways in which the Federal Circuit has opted for the "certainty" side of the Fair Protection-Certainty Conundrum. Next, the Essay surveys recent Supreme Court cases which show that the Supreme Court has enabled this shift, making the Court complicit in the Federal Circuit's agenda of creating formalistic rules in lieu of standards.

Number of Pages in PDF File: 12

Keywords: Patent, Federal Circuit, Supreme Court, Formalism, Bright Line, Standard, Rule, Certainty, Festo, Warner-Jenkinson, Pfaff

Accepted Paper Series