61 Pages Posted: 1 Mar 2014 Last revised: 29 Jun 2016
Date Written: 2014
This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.
Appreciating the unique nature of patent dialogue has important implications for patent law in particular and for all legal areas with specialized courts more generally. Encouraging the Supreme Court and Congress to debate patent policy through the Federal Circuit situates law making at the institution most capable of crafting efficient legal rules. Additionally, the Federal Circuit’s participation in the dialogue over patent law and policy can reduce many of the drawbacks of specialized adjudication, namely tunnel vision, doctrinal ossification, and power expansion.
But policy dialogue with a specialized court also involves unique supervisory and catalytic roles for the Supreme Court and Congress. Thus, while “patent dialogue” holds out the promise of increased institutional input regarding patent reform, the Supreme Court and Congress must develop new methods of catalyzing the Federal Circuit to action and of overseeing the Federal Circuit’s responsiveness to policy signals.
Keywords: patents, Congress, Supreme Court, governance as dialogue, Federal Circuit, patent reform, patent law
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