Rethinking Patent Law in the Administrative State
Orin S. Kerr
The George Washington University Law School
July 2, 2008
William & Mary Law Review, Forthcoming
GWU Law School Public Law Research Paper No. 416
This Article argues that administrative law doctrines should not apply to judicial review of the patent system. The dynamics of patent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. A patent is akin to a unilateral contract offer by the government. An inventor who files a patent claim is claiming acceptance of the offer. If the offeror-government agrees, the patent must issue, with the property right of the patent given as consideration. An applicant that challenges the denial of a patent application is essentially bringing a breach of contract action, and a patent infringement suit is a type of tort claim. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines pose a serious threat to the proper functioning of the patent system.
Number of Pages in PDF File: 69
Keywords: patent law
JEL Classification: K1
Date posted: July 7, 2008 ; Last revised: March 24, 2015
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