Abstract

http://ssrn.com/abstract=1154253
 
 

Citations (2)



 


 



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

Abstract:     
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


Open PDF in Browser Download This Paper

Date posted: July 7, 2008 ; Last revised: March 24, 2015

Suggested Citation

Kerr, Orin S., Rethinking Patent Law in the Administrative State (July 2, 2008). William & Mary Law Review, Forthcoming; GWU Law School Public Law Research Paper No. 416. Available at SSRN: http://ssrn.com/abstract=1154253

Contact Information

Orin S. Kerr (Contact Author)
The George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)
HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=3568

Feedback to SSRN


Paper statistics
Abstract Views: 1,313
Downloads: 124
Download Rank: 150,987
Citations:  2

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.281 seconds