Rethinking Patent Law in the Administrative State

69 Pages Posted: 7 Jul 2008 Last revised: 26 Apr 2017

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: July 2, 2008

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.

Keywords: patent law

JEL Classification: K1

Suggested Citation

Kerr, Orin S., Rethinking Patent Law in the Administrative State (July 2, 2008). 42 William & Mary Law Review 127 (2000), Available at SSRN: https://ssrn.com/abstract=1154253

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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