Of Patents and Path Dependency : a Comment on Burk and Lemley

This Article delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley’s earlier article, Is Patent Law Technology-Specific?, the piece notes that the basic question posed by Burk and Lemley’s article is a relatively easy question given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which this Article refers to as micro-exceptionalism) is both observable and easily justifiable for a legal regime directed to technology policy. In contrast, Burk and Lemley’s identification of, and advocacy for, a broader sort of exceptionalism (macro-exceptionalism) is far more troublesome, implying a role for the patent judiciary in rather detailed policy judgments, for example the optimal breadth for biotechnological or software-based patents. The Article offers a variety of reasons that macro-exceptionalism is unwarranted, and indeed, notes that a primary claim of Burk and Lemley’s—that the Federal Circuit has grossly missed the mark in its (purportedly) exceptionalist approach—previews the sort of problems created by pursuing technological exceptionalism in the patent law.