Administrative Oversight: Justice Gorsuch's Patent Opinions, the PTAB, and the Antagonism Toward the Administrative State

32 Pages Posted: 3 Oct 2018

See all articles by Daniel Kim

Daniel Kim

Unified Patents; American University - Washington College of Law

Jonathan Stroud

Unified Patents Inc.

Date Written: September 11, 2018

Abstract

In his first term, Justice Neil Gorsuch has made a surprisingly forceful impact on, of all things, patent law—and even more unlikely, the United States Patent and Trademark Office’s adjudicatory arm, the Patent Trial and Appeal Board. Was there any way to predict, from his 10th Circuit opinions below, that he would author opinions in all three patent cases in his first term? Was this attention the result of deeply submerged but long-felt opinions on patent law, or rather a result of his sharp distrust of administrative overreach? We analyze 10th Circuit and Supreme Court opinions authored by Justice Gorsuch, and conclude his unforeseen interest springs from his desire to limit agency power rather than from any particular concern with patents. Still, his opinions—intentionally or by happenstance—will reverberate through our patent law for years.

Keywords: Justice Gorsuch, Patent Law, Administrative Law,

Suggested Citation

Kim, Daniel and Stroud, Jonathan, Administrative Oversight: Justice Gorsuch's Patent Opinions, the PTAB, and the Antagonism Toward the Administrative State (September 11, 2018). Chicago-Kent Journal of Intellectual Property, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3247984

Daniel Kim

Unified Patents ( email )

171 Main St. #106
Los Altos, CA 94022
United States
3023835737 (Phone)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Jonathan Stroud (Contact Author)

Unified Patents Inc. ( email )

1875 Connecticut Ave. NW, Floor 10
Washington, DC 20009
United States
5048132171 (Phone)

HOME PAGE: http://unifiedpatents.com

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