Formalism and Antiformalism in Patent Law Adjudication: Rules and Standards

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 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, this 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 rulebased 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