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February 4, 2009

Patent Statutes and the Denial of Literalism: The Way It's Always Been

I'm teaching patent law again after a year or two away, and it's fascinating to be reading the cases after having spent so much time dealing with statutory interpretation (I co-wrote a book on statutory interpretation, a teachers' manual, and of course this blog).  My sensitivity about the issue is no doubt honed.

What is fascinating to me is that the courts, including the supreme court, routinely and expressly reject literal textual approaches.  One example is Chief Justice Taney's opinion in Gayler v. Wilder, 51 US 477 (1850), in which he wrote that read literally,the statute called for a clear result, but that "we do not think this construction woudl carry into effec the intention of the legislature."  The Court went further and engrafted additional requirements onto the statute that, frankly, its plain text could not support.

I write only because it was refreshing to see a court actually trying to accomplish the social good of efficiency, rather than throwing up its hands and abdicating to a "well, that's what the text says and it's up to Congress to fix it" approach that textualism can lead to.

The other interesting analog between patents and statutes is, of course, claim interpretation. That's for another day.

February 4, 2009 in Current Affairs | Permalink


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