Judge Dyk Suggests En Banc Review of CAFC Preamble Law
I would also like to take issue with Judge Dyk’s statement that it would simply be easier, and better, to say that anything in the preamble is limiting. Yes, that would certainly be easier and probably a better approach than the nebulous standard presently in place, but I doubt that would be to the Supreme Court’s liking given they seem to detest bright line rules, even when they make sense. I also protest such an approach because that has, as far as I can tell, never been the law, or at least not at any time during my practice career. So regardless of whether it is a better test it absolutely should not be applied retroactively to affect those rights obtained under the belief that what is in the preamble is not limiting.