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65 J. Pat. Off Soc'y 331 (1983)
Why Not the Statute

handle is hein.journals/jpatos65 and id is 358 raw text is: WHY NOT THE STATUTE?** When all else fails, read the instructions is sage advice for anyone. For lawyers and judges, substitution of stat- ute for instructions makes it sage advice when a statute is present. When the patent statute (35 USC) is present, the advice has been far too often ignored. Though Let's ignore the statute is a syndrome that can occur in any type of case, it has been particularly egre- gious in patent cases. I cannot in this short paper explore the possible causes of that circumstance.' I can only dem- onstrate its existence. Disregard of the patent statute is the more surprising when one recalls that the patent laws are entirely statutory. There is no common law of patents. To be sure, there has been some judicial maneuvering within the interstices of the statute, but it has been rare and for the most part necessary. We are not here concerned with judicial glosses on the statute, admitted as such and explained as necessary. What- ever may be said of one or more such judicial forays, they at least have the benefit-and the fairness-of recognizing the existence of the statute. Our concern here is with plain, simple disregard of the statute-evidenced in the promul- gation of some words and phrases that muddy the decisional waters and other words and phrases that render the law as written by congress a nullity. In sum, when it comes to patent cases, the statute is the law-and court opinions containing language and concepts contrary to the statute are unlawful. One of the most water-muddying words is monop- oly. The word, of course, appears absolutely nowhere in the patent statute, 35 USC. On the contrary, 35 USC 154 specifies that a patent is a grant for seventeen years of the right to exclude others from making, using, or selling the invention, and 35 USC 261 says Patents shall have the attributes of personal property. Thus, as the statute makes *Chief Judge, Court of Appeals for the Federal Circuit. **A talk given April 26, 1983 at the University of Chicago Law School. I Judge Giles Rich has surveyed some causes. See Escaping The Tyranny Of Words-Is Evolution In Legal Thinking Possible?, Non obviousness-The Ulti- mate Condition Of Patentability (John F. Witherspoon), Bureau of National Affairs, Inc., Washington, D.C. 1980. -331- Howard T. Markey*

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