'Who's Afraid of the Federal Circuit'
11 Pages Posted: 22 Dec 2011
Date Written: December 20, 2011
In this brief Essay, I respond to Professor Jonathan Masur's Yale Law Journal article "Patent Inflation." Professor Masur's argument rests on the assumption that U.S. Patent and Trademark Office ("PTO") behavior is determined almost entirely by a desire to avoid reversal by the Federal Circuit. Although the PTO is certainly a weak agency over which the Federal Circuit has considerable power, Masur overestimates the extent to which high-level PTO administrators are concerned about Federal Circuit reversals and underestimates institutional influences that are likely to operate in a deflationary direction. The PTO is influenced not only by the Federal Circuit but also by executive branch actors, industry players, and workload concerns that can push in a deflationary direction.
Keywords: patents, administrative law, federal circuit
JEL Classification: K23
Suggested Citation: Suggested Citation