Naïve Textualism in Patent Law

Abstract

This symposium asks, “How much work does language do?” The answer these days is “too much.” Courts are letting statutory language do the work that used to be done by judges’ paying sensitive attention to context, history, policy, and background understandings. Or at least, they are apparently doing so — the even less appealing possibility is that courts are using statutory language as a cover for decisions reached on other grounds.

I have long argued that part of the judicial function in statutory interpretation is to apply “background principles” of law, or “field-specific canons of construction.” Courts, in construing statutes, should — and do — discern the background principles of the area of law of which a statute is a part and interpret statutory text in light of them. Background principles of law frequently influence statutory interpretation, and in appropriate cases, the force of field-specific canons of construction may be so great as to cause courts to depart from apparently clear statutory text.

Textualist interpreters, however, are pushing more and more in the direction of insistently following statutory text. Textualists are becoming increasingly radical, as they gradually realize that the accommodations they previously allowed in order to reach sensible results are inconsistent with fundamental textualist premises. This trend has resulted in the creation of a “naïve textualism.” This mode of interpretation is not sharply differentiated from textualism per se, but is distinguished by its naïve attitude that statutes can be best understood by simply looking up their words in a dictionary, applying a few canons of statutory construction, and eschewing other considerations.

The Supreme Court recently provided an excellent example of its radical shift in the direction of naïve textualism in the field of patent law. For decades — indeed, for centuries — patent law was a paradigm of richly contextualized judicial interpretation. Courts understood the sparse text of patent statutes in light of history, policy, and background understandings of the field of patent law. In the recent case of Bilski v. Kappos, however, the Supreme Court looked to little more than the dictionary in deciding fundamentally important questions under the patent statute. Bilski shows the dangers of language doing too much work.