Policy Tailors and the Patent Office

Abstract:     
Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“USPTO”) has been widely believed to lack the authority and institutional competence for such policymaking. The Agency has also been presumed to be overly susceptible to agency capture. This Article analyzes these objections to USPTO policymaking and concludes they are no longer persuasive in light of recent reforms to the patent system. I argue the courts should give the USPTO broad flexibility to use its statutory authority, and the Agency can and should use this flexibility to tailor patent policy to the needs of different types of inventors and industries.

Number of Pages in PDF File: 47

Keywords: patent reform, policy levers, America Invents Act, agency capture, economies of scale

Accepted Paper Series