The courts shouldn’t make policy---their only role should be to fill substantial gaps in policy, in which patent law has none.

Nonetheless, as so often is true in law, the devil is in the definitions. I view these examples inherent in the jurisprudential process as a far cry from the kind of "policy" that some would have this court make. The policy that I believe a court has no power to make is that which asks established law to give way in the face of a current social goal deemed more "important"-based on an argument that a felt necessity should trump existing principles because they are old and threadbare, or because the legislature never imagined such a new and different set of facts. It is then that we judges should be most cautious about doing our job, and only our job. If we do it right, the "policy" we search for and apply will always be someone else's-not our own. It is important to emphasize, moreover, that, to the limited extent that policy creeps into judicial decision-making it does so only where gaps in the law are substantial and uncharted. For example, there is certainly a body of case law where courts over the years have been forced to determine what the words "cruel and unusual punishment" mean3 or what is "unreasonable" in the search-and-seizure context.' Those phrases in the Constitution are broad and somewhat vague, perhaps intentionally so. But where, as with the Patent Act, Congress has put together a statutory scheme with a fair measure of specificity, there are far fewer gaps in the law to fill. Instead, judges are to apply that law as written, regardless of whether they think Congress's choices make sense or would match their own choices if given the flexibility to make them. Where gaps in the law exist, moreover, judges do not have the right, nor would they presume to have the right, to make policy choices that differ from those well established by the Supreme Court and governing precedent. Thus, judges in lower courts today can readily apply the Eighth and Fifth Amendments to the facts before them with little struggle, not because the textual phrases are any less broad or vague today than they were originally, but because their confines are now well defined by common law rules. Applying this concept to patent law, because the Federal Circuit decides patent cases in the context of a comprehensive statutory scheme, fairly well established precedent, and in light of governing written documents, those marginal cases where policy choices need to be made should be few and far between. And, again, at the risk of being redundant, to the extent made, any policy choices courts make must not be our own.