Administrative Law, Patents, and Distorted Rules

Abstract:     
Since 1935, courts have embraced a uniformly lenient approach towards congressional delegations of authority to agencies across different regulatory areas with one notable exception. The United States Court of Appeals for the Federal Circuit has crafted its own limitations on the authority of a presidentially-controlled agency, the United States Patent and Trademark Office.

Amid ongoing efforts to reform the patent system, this Article provides the first analysis of the development of this administrative law anomaly. It shows that the Federal Circuit’s approach derives little support from the Constitution, the Agency’s organic statute, Supreme Court precedent, or, for that matter, any other appellate court decision. Rather, the approach arose out of a few haphazard lines of dicta in a case that has been inadequately examined. This Article further demonstrates that the Federal Circuit’s approach has generated an incoherent and normatively dysfunctional distinction between valid procedural rules and invalid substantive rules that (1) creates perverse incentives for the Agency to keep the public out of its decision making process, (2) stifles the Agency’s ability to upgrade its notoriously slow and ineffective review process, and (3) sets a precedent that the judicial branch may distort congressional delegations of authority.

Number of Pages in PDF File: 54

Keywords: administrative law, patent law, innovation, green technologies, separation of powers

Accepted Paper Series