Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards

82 Pages Posted: 7 Aug 2013 Last revised: 9 Dec 2016

See all articles by David O. Taylor

David O. Taylor

Southern Methodist University - Dedman School of Law

Date Written: March 1, 2013


The United States Court of Appeals for the Federal Circuit exists at least in part to achieve goals related to patent law that the Supreme Court singularly failed to achieve. Since the Federal Circuit’s inception just over thirty years ago, however, critics have shifted blame for problems with the patent system from the Supreme Court to the Federal Circuit. A common criticism that has gained strength is that the Federal Circuit engages in overly formalistic rule-based adjudication in patent cases. One aspect of this criticism is that the Federal Circuit too often creates rules to govern patent law. In this Article, I challenge that critique and defend the Federal Circuit’s practice of considering the appropriateness of a rule-based adjudicatory approach to patent law in the context of the present institutional structure. After evaluating the history of the Supreme Court’s oversight of the Federal Circuit and assessing normative bases for the use of rules in patent law, the Article suggests a framework for evaluating the appropriate degree of rule-based adjudication in patent law. In short, this Article develops and defends the position that the Federal Circuit’s consideration of rule-based adjudication reflects not only the expected but also the preferred practice of a semi-specialized intermediate appellate court whose development of patent law is subject to discretionary review by a generalized court of last resort.

Keywords: patents, rules, standards, formalism, antiformalism

Suggested Citation

Taylor, David O., Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards (March 1, 2013). Connecticut Law Review, Vol. 46, 2013, SMU Dedman School of Law Legal Studies Research Paper No. 201, Available at SSRN:

David O. Taylor (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States


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