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Is The Federal Circuit Succeeding? An Empirical Assessment Of Judicial Performance, Polk Wagner, Lee Petherbridge
Is The Federal Circuit Succeeding? An Empirical Assessment Of Judicial Performance, Polk Wagner, Lee Petherbridge
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As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has had profound effects on the jurisprudential development of the legal regimes within its purview - especially the patent law, which the Federal Circuit has come to thoroughly dominate in its two decades of existence. In this Article, we assess the court's performance against its basic premise: that, as compared to prior regional circuit involvement, centralization of legal authority will yield a clearer, more coherent, and …
Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner
Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner
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This Article delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's earlier article, Is Patent Law Technology-Specific?, the piece notes that the basic question posed by Burk and Lemley's article 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 this Article refers to as micro-exceptionalism) is both observable and easily justifiable for a legal regime directed to technology policy. In contrast, Burk and Lemley's identification of, …
Exactly Backwards: Exceptionalism And The Federal Circuit, Polk Wagner
Exactly Backwards: Exceptionalism And The Federal Circuit, Polk Wagner
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This short essay critically evaluates the current proposals, most closely associated with Dan Burk and Mark Lemley, that the patent law should increasingly become technology-specific - that is, that the law should reflect different rules for different technological areas or industries. I make three points. The first is to point out that descriptive claims of a fundamental technological-exceptionalism (what I call "macro-exceptionalism") in the patent law are not well supported, once one sets aside the small factual variability ("micro-exceptionalism") built into the legal standards. Second, using empirical data from the development of claim construction jurisprudence and the patterns of en …