Abstract

     Congress created the United States Court of Appeals for the Federal Circuit in 1982 to bring greater uniformity to the country’s patent laws. Drawing on this purpose, the Federal Circuit has expanded this call for uniformity by also emphasizing the need for predictability and certainty in the law. The court thus has articulated fairly formalistic approaches to a number of issues. The use of bright-line rules, however, is often at the cost of fairness. In the area of property law, Professor Carol Rose highlighted this tension, and noted the historical, pendulum-like shifts between clear, hard-edged, “crystal” rules and uncertain “muddy” rules that afford greater fairness. Professor Chisum identified this same tension in patent law in his important piece, published in this journal in 1998, coining the phrase “the Fair Protection-Certainty Conundrum.”
     The Federal Circuit increasingly has articulated rules of law to promote certainty, at the expense of fairness. The root of this bias likely derives from the court’s Congressional mandate to promote  uniformity and certainty in patent law. This rules-based approach, however, is not without critics. Professor Jay Thomas recently  detailed the evolution of this shift to formal, simplistic rules, noting that this approach may in fact impair innovation, not facilitate it. Professor Arti Rai also has expressed the view that such formalism impairs innovation policy. This Essay posits, however, that not all of the blame should fall on the Federal Circuit’s shoulders. The Supreme Court has expressly encouraged this approach in its recent patent jurisprudence. This Essay will first identify the various ways in which the Federal Circuit has opted for the “certainty” side of the Fair Protection-Certainty Conundrum. Next, the Essay surveys recent Supreme Court cases which show that the Supreme Court has enabled this shift, making the Court complicit in the Federal Circuit’s formalism agenda.