Exactly Backwards: Exceptionalism and the Federal Circuit

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

JEL Classifications: K00, K11

Accepted Paper Series