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
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.


Howard T. Markey*

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