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An Explicit Policy Lever For Patent Scope, Anna B. Laakmann

Anna B Laakmann

Since its inception in 1982, the Federal Circuit has declined to take an overt role in setting patent policy. Dan Burk and Mark Lemley have observed that the court instead implicitly engineers patent policy through its selective application of its patentability rules, which operate as “policy levers.” Recent decisions on the patentability of diagnostic and therapeutic methods illustrate the problem with this approach. By maintaining a façade of adjudicative rule formalism while tacitly manipulating its rules to approximate policy goals, the court creates doctrinal confusion. More importantly, it perpetuates empirical uncertainty about the patent law’s specific practical effects.

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