Hastings Science and Technology Law Journal


Robin Feldman


Recent Supreme Court cases reveal a fascinating conversation across time between the Court and the Federal Circuit. It is a conversation not just about the nature of patents, but also about the nature of judicial decision-making. The conversation implicates how one goes about crafting the rules within an area of law, what approaches are tenable, and what is the appropriate relationship among the various courts. The conversation has the feel of an exchange between a teacher and a student, or perhaps between an adult and an adolescent. As with any conversation of this kind, much of the talking is done by the one who has the wisdom conferred by virtue of superior status, but there are occasional rejoinders from below. This article decodes the conversation, predicts that the Court will have two more pronouncements soon in this area, and suggests an approach that would rationalize the Court's prior jurisprudence, bringing coherence and general applicability to this area of law.