(Mostly) Against Exceptionalism

18 Pages Posted: 13 Aug 2002

See all articles by R. Polk Wagner

R. Polk Wagner

University of Pennsylvania Law School

Date Written: April 2002


This Essay delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's Biotechnology's Uncertainty Principle, the piece notes that the basic question posed by that article - whether the patent law is "technology-specific" - is a relatively easy question, given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which the Essay refers to as TYPE I exceptionalism) is both extant and easily justifiable for a legal regime directed to technology policy. It is a broader sort of exceptionalism (TYPE II) that is far more troublesome, implying a role for the patent law in quite detailed policy judgments, such as the optimal breadth for biotechnological patents (as Burk and Lemley suggest). The Essay offers a variety of reasons that TYPE II exceptionalism is unwarranted, and indeed, notes that a primary claim of Burk and Lemley's - that the Federal Circuit has grossly missed the mark in its (purportedly) exceptionalist approach - previews the sort of problems created by pursuing technological exceptionalism in the patent law.

Keywords: patents, patent law, technology, POSITA, exceptionalism, Federal Circuit, claim construction, obviousness, validity, biotechnology, Lourie

Suggested Citation

Wagner, R. Polk, (Mostly) Against Exceptionalism (April 2002). U of Penn, Inst for Law & Econ Research Paper 02-18; U of Penn. Law School, Pub. Law Research Paper No. 07, Available at SSRN: https://ssrn.com/abstract=321981 or http://dx.doi.org/10.2139/ssrn.321981

R. Polk Wagner (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
267-433-4431 (Phone)

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