Through the Alice Corp. Looking Glass: Using Pragmatic Arguments to Bring Predictability to Patent Law

Portis, Jason B | January 1, 2016

Within the last four years, multiple institutional actors that have largely remained dormant in the scope of innovation policy and patents have undertaken a surprisingly interventionist reform of patent law. Congress, administrative agencies, and the Supreme Court have all recently shaped patent law to be more pragmatic and less overtly formalistic. Conversely, the Court of Appeals for the Federal Circuit has staunchly defended a formalist approach to patent law, advocating consistently for bright-line rules. The Federal Circuit has been charged with bringing predictability to patent law since its creation in 1982. The Federal Circuit attempts to bring predictability and uniformity through a largely rule-based formalist approach. Empirical evidence shows that the Federal Circuit’s rule formalism has actually decreased the predictability of patent law. The Supreme Court’s recent interventions into patent law show they are in favor of a more pragmatic approach, favoring policy considerations over the adoption of bright-line formalist rules. The history of the Federal Circuit shows it was designed to be an institutional body of expertise in patent law. This expertise was meant to serve two purposes, the first was to bring predictability and uniformity to patent law. The second was to be a body with not only the power to shape patent law, but the knowledge to shape it in accordance with the goals and policies inherent in the Patent Act. This comment explains how recent Supreme Court precedents regarding patent-eligible subject matter create a framework for inculcating pragmatic, policy intensive arguments into traditionally rigid, formalistic Federal Circuit jurisprudence. The framework becomes a vehicle for the Federal Circuit to shape patent law in alignment with the pragmatic and social considerations derived from innovation policy. This comment then illustrates how that framework can be applied to bring predictability to other key areas of uncertainty in patent law.