Administrating Patent Litigation

65 Pages Posted: 26 Aug 2014 Last revised: 14 May 2015

See all articles by Jacob S. Sherkow

Jacob S. Sherkow

Harvard University; New York Law School; Center for Advanced Studies in Biomedical Innovation Law

Date Written: April 13, 2015


Recent patent litigation reform efforts have focused on every branch of government — Congress, the President, and the federal courts — save the fourth: administrative agencies. Agencies, however, possess a variety of functions in patent litigation: they serve as “gatekeepers” to litigation in federal court; they provide scientific and technical expertise to patent disputes; they review patent litigation to fulfill their own mandates; and they serve, in several instances, as entirely alternative fora to federal litigation. Understanding administrative agencies’ functions in managing or directing, i.e., “administrating,” patent litigation sheds both descriptive and normative insight on several aspects of patent reform. These include several problems inherent in patent litigation, generally, and ways of fixing them that focus less on the identities or characteristics of litigants and more on agencies’ (and courts’) institutional incentives. This Article synoptically describes the functions of administrative agencies in patent litigation, elucidates several problems with agencies’ operation of those functions, and provides several cheap, easy, and politically viable solutions to better administrating patent litigation.

Keywords: patent, admin, administrative, agencies, litigation, FTC, FCC, FDA, PTO

JEL Classification: O3, O34, K1, K11, K21, K23, K41, D73

Suggested Citation

Sherkow, Jacob S., Administrating Patent Litigation (April 13, 2015). Washington Law Review, Vol. 90, p. 205, 2015; NYLS Legal Studies Research Paper No. 13/14 #84. Available at SSRN:

Jacob S. Sherkow (Contact Author)

Harvard University ( email )

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New York Law School ( email )

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Center for Advanced Studies in Biomedical Innovation Law ( email )

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