The Supreme Assimilation of Patent Law

Peter Lee*

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as appellate review of lower courts, remedies, and the award of attorney’s fees. The Supreme Court has consistently sought to eliminate patent exceptionalism in these and other areas, bringing patent law in conformity with general legal standards. Among other implications, this development reveals the Supreme Court’s holistic outlook as a generalist court concerned with broad legal consistency, concerns which are less pertinent to the quasi-specialized Federal Circuit. Turning to normative considerations, this Article argues in favor of selective, refined exceptionalism for patent law. Although the Supreme Court should strive for broad consistency, certain unique features of patent law—particularly the role and expertise of the Federal Circuit—justify some departure from general legal norms. Finally, this Article turns to tensions between legal universality and exceptionalism more broadly, articulating principles to guide the deviation of specialized areas of law from transcendent principles.

* Professor of Law and Chancellor’s Fellow, University of California, Davis, School of Law. I would like to thank Afra Afsharipour, Ash Bhagwat, Jack Chin, Rochelle Dreyfuss, Paul Gugliuzza, Margaret Johns, Tom Joo, Sapna Kumar, Peter Menell, Lucas Osborn, Andrea Roth, and Ted Sichelman for their helpful insights on earlier versions of this paper. This Article benefitted substantially from presentations at UC Davis School of Law, UC Berkeley School of Law, the Intellectual Property Scholars Conference at DePaul University College of Law, the East Bay Faculty Workshop, and Benjamin N. Cardozo School of Law. I would like to thank Dean Kevin Johnson and Senior Associate Dean Vik Amar for providing generous institutional support for this project. I would also like to thank Mark Bailey and the UC Davis School of Law library staff for providing excellent research assistance. Finally, I would like to thank the outstanding editors of the Michigan Law Review.

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