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http://ssrn.com/abstract=270048
 
 

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Patent Law in the Age of the Invisible Supreme Court


Mark D. Janis


Indiana University Maurer School of Law


University of Illinois Law Review, Forthcoming

Abstract:     
This article examines the permanence of the U.S. Supreme Court's retreat to the peripheries of patent law after the creation of the Federal Circuit, and explores the roles that the Supreme Court might imagine for itself in contemporary patent law. For discussion purposes, the article describes two hypothetical models for Supreme Court decisionmaking in patent cases: an aggressive interventionist model and an extreme non-interventionist model. After considering the shortcomings of both models, the article proposes an intermediate, managerial model. The managerial model rejects the proposition that the Court should intervene in patent cases to correct perceived substantive errors in Federal Circuit decisions. Instead, the model encourages the Court to manage disputes over the appropriate allocation of power among institutions of the patent system. Accordingly, the Court should intervene in patent cases that present such issues, and should direct its opinions towards resolving such issues, leaving the elaboration of detailed substantive patent doctrine to the Federal Circuit.

Number of Pages in PDF File: 34

JEL Classification: K40, K41

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Date posted: June 2, 2001  

Suggested Citation

Janis, Mark D., Patent Law in the Age of the Invisible Supreme Court. University of Illinois Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=270048 or http://dx.doi.org/10.2139/ssrn.270048

Contact Information

Mark David Janis (Contact Author)
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
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