The question of institutional choice is important in all areas of the law, but particularly in the context of patent law with its divergent stakeholders, decentralized variance among industries regarding how the patent system is viewed and relied upon, and a persistent focus on reform in recent years. For over two hundred years, the courts have been the dominant force in the development of patent law. It should therefore come as no surprise to learn that a significant portion of American patent law, including some of the most important and controversial patent law doctrines, is either built upon judicial interpretation of elliptical statutory phrases or is devoid of any statutory basis. Thus, while Congress and the courts each have a hand in constructing the latticework of patent law, judges - not the authors of lex scripta - are the principal architects.

The common law process - in the Hayekian sense - situates the judge within a given technological community, where norm identification can be more easily recognized and representative legal frameworks constructed that are more closely tethered to relevant social context. Such a pronounced common law role offers an opportunity to exercise significant discretion. How this judicial discretion has been managed can be gleaned from the common law’s willingness to construct legal forms, most notably the choice and balance between the creation of a rule-based (or rule-like) jurisprudence and a more standard-oriented approach. The evolution of the common law of patents has been interstitial and nuanced, displaying an understanding that a body of law devoted to promoting technological innovation - a decentralized enterprise with attendant norms unique to each innovative community - more often than not requires a less dichotomous approach, constructing analytical frameworks that are situated somewhere between a spotless rule and a pure standard.

Through the lens of comparative advantage, therefore, this experience provides a strong case for judicial primacy in the context of substantive reform, and an important, yet modest, Congressional role, one limited to (1) bringing about procedural change or altering patent law’s judicial architecture; and (2) engaging in substantive corrective action by addressing a common law gone awry.


Intellectual Property, Patents, Rules, Standards, Common Law v. Legislation, Intuitional Choice

Publication Date


Document Type


Place of Original Publication

Boston University Law Review

Publication Information

Legal Forms and the Common Law of Patents


90 Boston University Law Review 51 (2010)


COinS Craig Allen Nard Faculty Bio