The Accidental Agency?

51 Pages Posted: 23 Nov 2011 Last revised: 25 May 2014

See all articles by Sapna Kumar

Sapna Kumar

University of Houston Law Center

Date Written: February 1, 2013


This Article presents a new model for examining the role of the Court of Appeals for the Federal Circuit (Federal Circuit) with regard to patent law, positing that the Federal Circuit behaves like an executive agency and serves as the de facto administrator of the Patent Act. The Federal Circuit has traditionally engaged in a form of substantive rulemaking by issuing mandatory bright-line rules that bind the public. In reviewing patent agency appeals, the Federal Circuit acts more like an agency than a court by minimizing agency deference through the manipulation of standards of review and administrative law doctrines. This position of administrator raises several concerns. Supreme Court intervention has jeopardized the Federal Circuit‘s ability to continue engaging in substantive rulemaking, calling into question the sustainability of the lower court‘s role as administrator. Furthermore, the Federal Circuit is caught between the Supreme Court‘s goal to unify administrative law and Congress‘s goal to unify patent law. These problems suggest that a confrontation between the Supreme Court and Congress is inevitable.

Keywords: agency, rulemaking, adjudication, federal circuit, PTO, patents

Suggested Citation

Kumar, Sapna, The Accidental Agency? (February 1, 2013). 65 Fla. L. Rev. 229 (2013). Available at SSRN:

Sapna Kumar (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States


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