Lucas Osborn (Campbell University Law School) has posted Instrumentalism at the Federal Circuit on SSRN. Here is the abstract:
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In the last eight years, the Supreme Court has taken an increased interest in patent law, and in each case it has decided, it has reversed the Federal Circuit’s patent-related decision. In addition, the Supreme Court has at times been vocally critical of the Federal Circuit’s failure to follow Supreme Court precedent. How has the Federal Circuit responded to this intervention? This Article asserts that the Supreme Court’s increased attention has changed the Federal Circuit’s rhetoric, but not its actions. While the Federal Circuit has responded by discussing Supreme Court precedent in its recent patent decisions, a critical analysis reveals that the Federal Circuit is hyper-interpreting that precedent to appear to require the Federal Circuit’s policy-driven outcome, when in reality the precedent is not so confining. The policy motivating the Federal Circuit to hyper-interpret Supreme Court precedent is its desire for relatively outcome-determinative rules. Rather than discuss its desire for certainty and the effects of its decisions, the court has minimized policy discussion. This Article further observes that the Federal Circuit’s hyper-construction of precedent and its failure to discuss policy will reduce certainty and lead to sub-optimal legal rules.
