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Exactly Backwards: Exceptionalism and the Federal Circuit Polk Wagner, University of Pennsylvania Download the Paper (PDF format) - April 10, 2005 Tell a colleague about it. Printing Tips: Select 'print as image' in the Acrobat print dialog if you have trouble printing. ABSTRACT: 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 banc proceedings at the Federal Circuit, I argue that the major trends in the patent law run directly counter to macro-exceptionalist claims. Finally, in considering the public policy issues raised by the calls for a judicially created technological-exceptionalism, I conclude that the most successful approach is, indeed, exactly backwards of that suggested by the proponents of technological-specificity in the patent law. SUGGESTED CITATION: Polk Wagner, "Exactly Backwards: Exceptionalism and the Federal Circuit" (April 10, 2005). University of Pennsylvania Law School. Scholarship at Penn Law. Paper 77. http://lsr.nellco.org/upenn/wps/papers/77 | REPOSITORY HOME  | SEARCH  | MY ACCOUNT  | NELLCO HOME | Powered by bepress.