Antiformalism at the Federal Circuit: The Jurisprudence of Chief Judge Rader
36 Pages Posted: 30 Mar 2012 Last revised: 2 Jan 2015
Date Written: March 29, 2012
While the Federal Circuit has long been characterized as producing formalistic patent doctrine, this essay argues that its Chief Judge does not share this methodological tendency. The essay starts by exploring the formalistic nature of Federal Circuit jurisprudence. In a variety of ways, Federal Circuit patent doctrine favors bright-line rules as well as syllogistic reasoning and eschews extensive consideration of context. The essay then examines Chief Judge Rader’s rejection of formalism by considering his contributions to three areas of patent doctrine: claim construction, patentable subject matter, and the written description requirement. Throughout his engagement with patent law, Chief Judge Rader exhibits a striking sensitivity to context, policy considerations, and exogenous sources of authority that distinguishes himself from his more formalistic peers. The essay concludes with a brief normative assessment of Chief Judge Rader’s 'antiformalist”' methodology and its value to patent jurisprudence.
Keywords: Patents, intellectual property, Federal Circuit, formalism, Chief Judge Rader, courts, claim construction, patentable subject matter, written description requirement
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