Rules versus Standards: Competing Notions of Inconsistency Robustness in Patent Law

50 Pages Posted: 31 Mar 2012 Last revised: 6 May 2017

See all articles by David S. Olson

David S. Olson

Boston College Law School

Stefania Fusco

Notre Dame Law School

Date Written: March 29, 2012


This Article applies a new paradigm from the field of computer science — inconsistency robustness (IR) — in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by necessity, have always been structured to be inconsistency robust. Accordingly, applying insights from the formal IR paradigm is helpful in analyzing the effective functioning of legal systems.

This Article is the first legal article to formally utilize IR in analyzing the legal system. By using IR analysis, the article identifies and analyzes a previously under analyzed persistent pattern within patent law. Specifically, the article shows via example in five separate areas of patent law that the Federal Circuit and Supreme Court repeatedly diverge on the adoption of rules versus standards in patent law. The Article shows that this pattern can be explained by viewing the two courts as rational systems administrators attempting to maintain an inconsistency robust patent system from each of their perspectives as systems administrators. The Article further shows that if the courts adopt a holistic view of IR, they can craft more optimal patent law by taking into account the costs and benefits of the law to all participants and administrators of the patent law system.

Keywords: inconsistency robustness, Supreme Court, Federal Circuit Courts, inconsistency elimination, information systems, patent law

Suggested Citation

Olson, David S. and Fusco, Stefania, Rules versus Standards: Competing Notions of Inconsistency Robustness in Patent Law (March 29, 2012). Alabama Law Review, Vol. 64, No.3, 2013, Boston College Law School Legal Studies Research Paper No. 258, Stanford Public Law Working Paper No. 2031158, Available at SSRN: or

David S. Olson (Contact Author)

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States
617-552-1378 (Phone)
617-552-4098 (Fax)

Stefania Fusco

Notre Dame Law School ( email )

1100 Eck Hall of Law
Notre Dame, IN 46556
United States
(312) 961-2955 (Phone)


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